1. Being aggrieved by the judgment and order passed in Contempt Case No.58 of 2005 on 10.08.2005 by the High Court of Andhra Pradesh at Hyderabad, this appeal has been filed by the appellant, who has been held guilty of contempt of Court and has been sentenced to simple imprisonment for one week and to pay a fine of Rs.2,000/-. It is pertinent to note that the appellant has already undergone the sentence.

2. Undisputed facts giving rise to the present litigation in a nutshell are as under: The appellant had given an undertaking in I.A. No.11 of 1985 in O.S. No.231 of 1972 before the IXth Assistant Judge, City Civil Court, Hyderabad that he would âreturn the documents on an undertaking to produce them whenever directedâ. The mother of the appellant, Late Sharda Bai was a litigant in the afore-stated case, which had been disposed of in 1981. Some of the documents, which had been produced by the mother of the appellant in the said case, were required by her and as she was unable to remain present before the Court due to her old age, she had requested the appellant to make an application on her behalf, for return of the documents and, accordingly, the appellant had made an application to the Court for return of the documents, which had been produced by Late Sharda Bai, the mother of the appellant. While returning the documents, the appellant was asked to give an undertaking to the Court that the said documents would be produced by him as and when the same would be required by the Court.

3. The said documents, which were handed over to the appellant, were given by him to his mother, Late Sharda Bai. The said documents were required in I.A. No.632 of 2001 in O.S. No.231 of 1972, which was pending in the Court of IXth Junior Civil Judge, Civil Court at Hyderabad. By an affidavit dated 5.10.2001, Late Sharda Bai had admitted the fact that the said documents were given to her by the appellant and she had further stated in the said affidavit that the appellant in the said proceedings had no right to get the said documents. Thus, it is an admitted fact that the present appellant had handed over the said documents to his mother Late Sharda Bai, who had right to retain the same as the documents were produced by her.

4. It is also an admitted fact that Sharda Bai expired on 02.06.2004.

5. When the appellant was asked to produce the said documents as per the undertaking given by him to the court, the appellant had submitted before the court that he had already handed over the said documents to Late Sharda Bai, who had expired on 02.06.2004 and he had further submitted that his house was âbadly hit by the cyclone in the year 1999, as a result of which his house was submerged into the flood water consequent to that it was collapsed as his house was built up of mud and covered with asbestos sheets resulting most of their belongings were vanishedâ. Thus, the said documents were neither with the appellant nor were they available at that time. According to the appellant, the case in which the said documents were required, was filed by the relatives of the appellant and they had filed an application for production of the said documents to pressurise the appellant in their family affairs.

6. Thus, it was the case of the appellant before the Court that it was impossible for him to return the documents handed over to him as the said documents were handed over by him to the rightful owner of the documents and the documents were also destroyed.

7. As the matter was taken up seriously by the Court concerned, reference was made for initiating contempt proceedings against the appellant as the documents were not returned as per the undertaking and the matter was placed before the High Court and by virtue of the impugned order, the High Court came to the conclusion that the appellant was guilty of contempt of court and therefore, the appellant has been punished.

8. Upon hearing the learned counsel appearing for the parties, we are of the view that there is no willful breach of the undertaking given to the court by the appellant, for which he can be held guilty of committing contempt of the Court.

9. In the instant case, it is an admitted fact that the documents had been handed over by the appellant to his mother, Late Sharda Bai, who was the rightful owner of the said documents and the said fact was admitted by his mother by filing an affidavit in another legal proceedings. Subsequently, the said documents had been destroyed because of the flood and therefore, it was impossible for the appellant to return the same to the Court.

10. Section 2(b) of the Contempt of Courts Act, 1971 reads as under:

â2(b) âcivil contemptâ means willful disobedience to any judgment, decree, direction, order, writ or other process of a court or willful breach of an undertaking given to a court;â

11. Upon perusal of the above mentioned definition of âcivil contemptâ, it is very clear that so as to hold somebody guilty of contempt of court, the concerned person must havewillfullydisobeyed any judgment, decree, direction, order, writ or any other process of a court or should havewillfullycommitted breach of an undertaking given to a court.

12. In the instant case, from the facts stated hereinabove, it is crystal clear that the appellant had no intention of committing breach of the undertaking given to the court. It was physically impossible for the appellant to produce the documents as the documents had already been given by him to his mother, on whose behalf he had collected the same from the court and the said documents had been subsequently destroyed because of a natural calamity. In our opinion, after knowing the above stated facts, the court should not have directed the appellant to produce the documents because it was impossible for the appellant to produce the documents. It would not be fair on the part of a court to give a direction to do something which is impossible and if a person has been asked to do something which is impossible and if he fails to do so, he cannot be held guilty of contempt.

13. It is deplorable that the appellant has been held guilty and has also undergone the sentence imposed by the High Court. We hold that the appellant was not guilty of committing contempt of court as there was no willful breach of the undertaking given to the court.

14. For the afore-stated reasons, we are not in agreement with the judgment delivered by the High Court and therefore, we set aside the same and allow the appeal with no order as to costs.

2. The advocates alongwith the aforesaid Contemnors pressurized Informant-Presiding Officer to retire in Chamber since advocates had passed a resolution of abstention and when he resented, advocates manhandled, assaulted and insulted him. Informant-Presiding Officer narrated the entire incident to Administrative Judge on telephone and also said that District Judge did not take any appropriate action in the matter. On the recommendation of Administrative Judge, Chief Justice vide order dated 21.11.2014 directed a fact finding inquiry, which was conducted by Sri Virendra Kumar-II, Special Officer (Vigilance), High Court, Allahabad [hereinafter referred to as âS.O. (Vig.)â] and he submitted report on 17.12.2014. The report was accepted by Administrative Committee of Court and in the light of the findings recorded by S.O.(Vig.), matter was assigned to Committee dealing with contempt reference from subordinate courts.

3. On 23.02.2015, Committee, prima facie finding a case of criminal contempt, made recommendation whereupon Chief Justice vide order dated 28.3.2015 directed the matter to be placed before Court on judicial side having jurisdiction of criminal contempt.

4. On 7th May, 2015, Court noticing the fact that Contemnors have been found to abuse informant-Presiding Officer, shouted slogans and assaulted him by throwing CPU of computer and pen holder, creating ruckus and ransacked dais of Court, and in the incident some advocates also sustained injuries, found prima facie case of âcriminal contemptâ against the aforesaid advocates since their aforesaid acts amount to scandalizing the Court, interfering and obstructing administration of justice, tarnishing image of Court and lowering down dignity and authority of Court, issued notice requiring them to show cause why they may not be punished for committing contempt.

6. Contemnors then filed replies and after perusing the same, Court framed charge against Contemnors on 24.8.2015, which reads as under :

âYou, Pradhuman Kumar Srivastava, Arvind Kumar Gautam, Gyanendra Singh Rajawat, Suresh Dixit, Raghunath Das Bishnoi, Yusuf Ishtiyaq, Karmkshetra Awasthi, Aftab Ahmad, Udai Shankar Dwivedi and Pankaj Gupta, Advocates, who are all stated to be practising lawyers and also associated with the District Bar Association of Jalaun at Orai on 20th November, 2014 at about 12.45 p.m. forcibly entered Court No. 3 presided over by Sri Manoj Kumar Shukla, the Additional District & Sessions Judge and shouted slogans using unparliamentary language and assaulted him physically by throwing items on his dais thereby creating a ruckus and ransacked the court resulting in injuries sustained by some of the advocates in the court room that left the court scandalized thereby lowering the esteem of the judiciary. The said incident therefore amounts to a clear interference with and an obstruction in the administration of justice and such act substantially interferes with the due course of justice which falls within the definition of criminal contempt under Section 2(c) of the Contempt of Courts Act, 1971 and, therefore, this court is of the prima facie opinion that you contemnors deserve to be tried for having committed the criminal contempt of the subordinate court as reported for which you deserve to be punished.â (emphasis added)

7. Applications were filed thereafter by Contemnors requesting to supply copies of statements recorded by S.O. (Vig.) on the basis whereof report dated 17.12.2014 was submitted and also a video footage, which was taken note in the said report. Court accepted the said request and vide order dated 01.9.2015, directed to supply the aforesaid material to Contemnors.

8. Though a large number of advocates had put in appearance on behalf of Contemnors but Sri Dharam Pal Singh, Senior Advocate, assisted by Sri Anil Kumar Srivastava has advanced submissions on behalf of all the Contemnors except Contemnor no.5 on whose behalf Sri Avnish Mishra has advanced his submissions. Besides Sudhir Mehrotra, Special Counsel, nominated by Court to assist in this matter, has also advanced his submissions.

9. Having heard learned counsel for parties, perusing video footage and other documents and considering affidavits filed by Contemnors and other relevant material, we proceed to deal with matter on merits. The defence taken by Contemnors in the affidavits and merits would be discussed simultaneously.

10. Informant-Presiding Officer came to be posted at Jalaun at Orai and joined thereat on 15th March, 2014. He was designated as Special Judge, E.C. Act. On 23.04.2014, General Secretary on behalf of District Jalaun Bar Association Orai (hereinafter referred to as âBar Associationâ) sent a letter to District Judge complaining against behaviour of Informant-Presiding Officer and stated that members of Bar Association shall abstain judicial work from 24.04.2014. Another letter dated 25.04.2014 sent to Administrative Judge of Judgeship requesting that in the month of May and June, Courtâs time be made in morning from 6 A.M. to 1 P.M. instead 10 A.M. to 5 P.M. and it was also said that Informant-Presiding Officer was not working properly and advocates are abstaining Court from 24.04.2014.

11. Subsequently Sri Pradhuman Kumar Srivastava came to be elected as President of Bar Association. A communication dated 18.10.2014 of Secretary, Bar Association was issued to Advocates that Court of Informant-Presiding Officer shall be boycotted till he is transferred outside the District and said communication was also endorsed to District Judge. Vide letter dated 21.10.2014, it was forwarded by Sri Vinod Kumar Yadav, District Judge, Jalaun at Orai to this Court.

12. On 20.11.2014, following massage was received on the mobile of the then Administrative Judge of District Judgeship Jalaun at Orai from informant-Presiding Officer :

âRespected Lordship, Today at 12.45 p.m. Advocate Pradumn Kumar Srivastava, President of Bar and his colleagues attacked on Court and beaten me and the D.J. is not taking any action.

14. On 21.11.2014, Registrar General submitted note before Chief Justice as under :

â1. The under-signed made telephonic inquiries about the incident mentioned in the said letter, it was established that the said incident has taken place.

2. The lawyers of the Bar Association of District Jalaun at Orai were boycotting the court of Sri Shukla for approximately thirty days.

3. On 20.11.2014 Sri Shukla was sitting in the Court and a mob of lawyers had manhandled him though the District Judge telepathically informed the undersigned that two P.A.C. Personnel were posted there, but it appears that none had come to protect the officer.

4. That there appears serious lapses in making security arrangement for the safety of Sri Shukla.â

(emphasis added)

15. Chief Justice thereupon ordered spot inquiry and this was conducted by S.O. (Vig.), who submitted his 94 pages report.

16. Statements of Court Reader, Orderly and a Class IV employee, were recorded by S.O. (Vig.). Perusal thereof show that at about 12.45 P.M., Informant-Presiding Officer was sitting on the dias when several Advocates entered Court room, shouting slogans, threw CPU of computer and pen-holder towards Informant-Presiding Officer; Table glass and and pen holders were broken and files fell down and scattered. Due to ruckus created by advocates, Informant â Presiding Officer got down from dias whereupon advocates gripped and dragged him out of Court in Varandah. In this ruckus some advocates also sustained injuries. In the process when advocates gripped informant-Presiding Officer and manhandled him, he also got indulged in scuffle.

17. S.O. (Vig.) for the purpose of inquiry formulated following three points :

â1. Whether Sri Pradhuman Kumar Srivastava, the President Bar Association, Jalaun at Orai along with his colleagues attacked on 20.11.2014 in the Court of Sri Manoj Kumar Shukla, Special Officer (Gangster Act)/Additional District & Sessions Judge, Court No. 03, Jalaun at Orai and he was man handled by these advocates?

2. Whether the then District Judge Sri Vinod Kumar Yadav did not provide proper security to Sri Manoj Kumar Shukla and provoked learned counsels to beat him up?

3. Whether on 20.11.2014 at about 12:30 Sri Manoj Kumar Shukla himself along with his gunner and ten constable of P.A.C. assaulted on the member advocates of delegations with kicks, fists and gun and constable of P.A.C. Beaten-up the learned acvocates with sticks and caused injuries to them while these advocates went to inform about the resolution passed in general meeting on 20.11.2014 at about 11:00 a.m.?â

18. After referring to evidence collected by him, he recorded his conclusion and findings as under :

âConclusion :

On the basis of above discussions and appreciation of the evidence of the witnesses, I have arrived at the following conclusions:-

E.W. 12 Sri Manoj Kumar Shukla, E.W. 48 Sri Shailendra Kumar Sharma, E.W. 37 â HCP 142 Sri Santosh Kumar Sachan, Pairokar of the police station Rampura, E.W. 31 â Sri Arvind Kumar Srivastava, Senior Prosecuting Officer, E.W.18 â Sri Ram Jiyawan Shukla and E.W. 26 â Sri Neeraj Mishra, Class-IV Employees have proved the incident dated 20.10.2014, stating that some advocates had arrived reached in the Court and thrown a bag towards the dais, which dropped between reader and the presiding officer. E.W. 48 â Reader has clarified this fact the learned advocates and the presiding officer had conversation in high volumes of voice, some senior advocates along with Court Moharir took these advocates and accused person out side the court, when the court was vacated by these persons, someone locked the court outside. After one hour this lock was opened by someone. E.W. 48 â clarified this fact that they were detained in the Court Room during this period. After opening of lock further dates were fixed in presence of accused persons.

The learned advocates have conveyed this fact that on 20.11.2014, a resolution was passed at about 11:00 a.m. in the general meeting of the District Bar Association, which was handed over at about 11:15 a.m. by the delegation of Bar Association to the District Judge, then the delegation informed the various courts about boycott and reached at about 12:30 p.m. At the court of Sri Manoj Kumar Shukla. Video recording made by him also shows time of recording on 20.11.2014 time at about 01:04:08. They have refuted this suggestion that delegation of the Bar association went straightway to the court of Sri Manoj Kumar Shukla, after visiting the chamber of the District Judge.

The learned advocates have stated that Sri Manoj Kumar Shukla has passed orders arbitrarily and illegally. He has insulted the litigants and learned advocates in the open court. They have quoted an example of his misbehave that Sri Manoj Kumar Shukla told a litigant in presence of Sri Devendra Ved, Senior Advocate, while he was conducting cross examination that why he has engaged learned advocate, he will cause damage to him and he would be convicted. On the same day, Sri Devendra Ved, sustained cardiac attack. The learned advocates have forwarded complaint written as well as oral regarding misbehave of Sri Manoj Kumar Shukla to the District Bar Association. The learned advocates have also clarified this fact that most of the learned advocates are not satisfied with the working of Sri Manoj Kumar Shukla.

Finding on Issue No.01.

The learned advocates entered in the Court room of Sri Manoj Kumar Shukla forcefully and attacked on 20.11.2014 at about 12:45 â 01:00 p.m. on him while he was sitting on the dias.

Sri Manoj Kumar Shukla has named Sri Pradhuman Kumar Srivastava, the president of the District Bar Association, Arvind Kumar Singh, Rajawat, Suresh Dixit, Raghunath Dass Bishnoi and Yusuf Ishtiyaq who abused him, shouted slogans and assaulted him by throwing CPU of computer, pen holder and beaten him up.

I have watched video recording produced by Sri Manoj Kumar Shukla. It revealed that Sri Pradhuman Kumar Srivastava, Advocate, E.W.1 the President and E.W. 02 Sri Arvind Kumar Gautam, Advocate, General secretary of the District Bar Association along with 10-15 advocates entered forcefully and created ruckus and ransacked the dais of the court of Sri Manoj Kumar Shukla E.W.1 â Sri Pradhuman Kumar Srivastava, Sri Gyanendra Singh Rajawat, E.W.-08 â Sri Suresh Dixit, E.W.43 â Sri Karma Kshetra Awasthi, Sri Aftab Ahmad, E.W.-4, Sri Udai Shanker Dwivedi, Sri Pankaj Gupta, Advocates sustained injuries in this incident dated 20-11-2014 is established, which shows they have participated actively in this incident. Therefore, proceeding of the contempt of the court of Sri Manoj Kumar Shukla should be drawn against these learned advocates.

E.W.36 â Constable No. 65 â Sri Abir Singh Court Moharir of the Court of Sri Manoj Kumar Shukla also sustained injuries, while he was trying to save Sri Manoj Kumar Shukla. He has also clarified this fact that only two P.A.C personnels armed with rifles were present at the point of time of incident dated 20-11-2014.

E.W. 32 â Sri Girja Shanker Dwivedi and Sri E.W.34 â Sri Kamal Kant Kushwaha, have clarified this fact that on 20-11-2014, no baton charge was made on learned advocates only slap and fists were used during thrashing each other. E.W. 34 has stated that police personnels were not having sticks. E.W. 38 â Sri Ashok Kumar Mishra, Advocate has clarified this fact that Sri Manoj Kumar Shukla gripped and thrashed only one advocate E.W.47 â Sri Sanjeev Kumar Gurjar, Assistant Government counsel of the Court of Sri Manoj Kumar Shukla has also clarified this fact that Sri Manoj Kumar Shukla had abused learned advocates only, he did not see anyone to thrash each other. No F.I.R. Has been lodged yet and no injury report of any learned advocate has been produced before me, who sustained injuries in the incident dated 20.11.2014.

Finding on Point No.3

1. It is pertinent to mention here that on the basis of appreciation of evidence of the above mentioned witnesses and fact and circumstances narrated by them, it revealed that Sri Manoj Shukla after attack on him got down from the dais and abused learned advocates who entered in the court room. Meanwhile, advocates gripped him and dragged towards Varandah outside his court and manhandled and abused him also. Thus Sri Manoj Kumar Shukla has also provoked learned advocates and indulge in scuffle with those advocates.

Work and conduct of Sri Manoj Kumar Shukla.

On persual of comments dated 17-04-2014, it is clearly established that Sri Manoj Kumar Shukla had protested against the then District Judge, because he was not satisfied with the allotment of his residence and shifting of his court room. Likewise, the then District Judge had discharged him from the responsibility as the Officer In- charge of Library and Nodal Officer of Computers. The reasons mentioned by him regarding the irregularities committed for the purchase of oil, toner of ink cartridge for computer printer and judgment paper and other stationery items and non availability of new edition of books at library, may likely be correct, even then it is inferred from the facts mentioned in this comments that Sri Manoj Kumar Shukla was not satisfied with the allotment of his official accommodation and shifting of his court.

The incident dated 24.04.2014 occurred at night at the guest house of Irrigation Department has been conjoined by Sri Manoj Kumar Shukla with the facts of recall of Civil Appeal No. 50 of 2012 â Smt. Khillan Devi Vs. State of U.P. which is not acceptable, because Civil Appeal No. 50 of 2012 was related to section 72 Excise Act, which could have only he heard by the District Judge as held by Honâble High Court, Allahabad and Uttranchal (Uttrakahnd) High Court.

On perusal of the documentary evidence produced by E.W. -40 â Sri Harnath Singh, Senior Advocate, it revealed that it may be possible that office bearer of the District Bar Association tried to pressurize Sri Manoj Kumar Shukla to obtain favorable orders n their favour and members advocate of their group. There is substance in the statement of Sri Manoj Kumar Shukla that he was pressurized by learned advocates, whose name has been mentioned by him in his statement of procure judicial order/judgment in their favour.

Therefore, on the basis of evidence of E.W. 40 Sri Harnath Singh, Senior Advocate, E.W.-45 Sri Raja Ram Chaturvedi and E.W. 46 Sri Rajesh Kumar, Advocate, it revealed that office bearer of the District Bar Association and some other advocates of their groups were not satisfied with the way of working of Sri Manoj Kumar Shukla and they could not be successful to pressurize him therefore, they carried on boycott the court of Sri Manoj Kumar Shukla from 18.10.2014.

Learned advocates have conveyed this fact that no complaint was received at the Bar Association that Sri Manoj Kumar Shukla has decided cases by receiving bribe. He is not a corrupt judicial officer.

â¦..

Point in issue no.2.

â¦â¦

Findings :

On the basis of these facts and circumstances inference may be drawn safely that Sri Vinod Kumar Yadav, the then District Judge, Jalaun at Orai has facilitated learned advocates to carry on boycott of judicial work of his court, during the period from 20.10.2014 up to 20.11.2014 and to commit incident on these dates.

â¦..â

19. Now we may refer to the replies filed by Contemnors.

20. Except Contemnor 5 Raghunath Das Vishnoi, a collective reply vide affidavit of Contemnor 1, sworn on 24.8.2015, has been filed. It is said that the incident dated 20.11.2014 has not happened in the manner as alleged by âInformant-Presiding Officerâ and recorded by S.O.(Vig.) in his report. Contemnors neither abused nor assaulted Informant-Presiding Officer nor damaged courtâs property. The video recording, which was prepared by Informant-Presiding Officer, has been wrongly relied by S.O.(Vig.) ignoring the fact that such recording in Court is not permissible and it goes a long way to suggest/determine the own conduct of Informant-Presiding Officer. Video recording was shown to S.O. (Vig.) on 26/27.11.2014 i.e. after a gap of 6-7 days giving sufficient opportunity for manipulation in video recording. The preparation/recording of video by manipulation by several device including device of cut paste is a common feature, which the modern development of science has made easily possible. With regard to injuries sustained by some advocates, inquiry report does not refer to medical report of anyone else. Recording of Video through laptop at the time of alleged occurrence was practically not possible. Video recording timing is 01:04:08 p.m. on 20.11.2014 whereas the incident is said to have taken place between 12:45 to 1.00 p.m.

21. Then in paras 15, 16, 17, 18, 19 and 20 of affidavit, allegations are made against Informant-Presiding Officer and it would be appropriate to reproduce the same as under :

â15. That the bare perusal of the Inquiry Report would show that the learned Judge, Sri Manoj Kumar Shukla appears to be Modern Don Quijote-de-la Mancha. He posses himself to be a fighter treating all others as wrong and full of vices. He has complaint against all possible authorities i.e. District Judge, Police Authorities including S.S.P., District Administration including District Magistrate, prosecution lawyers and lowyers in general and litigants, who unfortunately happen to be attending the court of the Learned Judge, Sri Manoj Kumar Shukla. Sri Shukla is in the habit of issuing notices to all possible authorities in almost every case. He is in the habit of teasing the litigants, not only in criminal cases, but also in civil cases. Inspite of receiving High Courtâs order of bail keeping the accused in jail for weeks is his usual habit. To call Advocates, âDalalâ of District Judge and other Judicial is his daily practice. All these facts came to the light during inquiry proceeding by the Learned Vigilance Officer.

16. That it has also come in the inquiry report that Learned Judge, Sri Manoj Kumar Shukla is in the habit of abusing his own staff, like his stenographer.

17. That the evidence of EW-23 Sri Umesh Dixit, Stenographer of Learned Judge, Sri Monoj Kumar Shukla discussed at Page 259 to 261 is sufficient to show/prove that the Learned Judge, Sri Manoj Shukla himself responsible for what happened on the day of occurrence. In view of the evidence of EW-23, the observations of the Learned Vigilance Officer with respect to the Issue No.01 are subject to more than one interpretation and not justified.

18. That the Learned Vigilance Officer has clearly found that the Learned Judge, Sri Manoj Kumar Shukla has manipulated/ prepared false evidence against the then Learned District Judge, and S.S.P. Jalaun at Orai (Kindly see at page no.203 of the inquiry report).

19. That the Learned Vigilance Officer has also observed (page 275 â 276) that he could not peruse the inquiry report dated 28.06.2014 and the letter dated 24.04.2014 submitted by Sri Vinod Kumar Yadav, the then district Judge, Sri Manoj Kumar Shukla.

20. That regarding the work and conduct of Pradhuman Kumar Srivastava made by Learned Vigilance Officer at page 276 of report, it is submitted here that Pradhuman Kumar Srivastava (present deponent) has never been served with a copy of any show cause notice with respect to the Transfer Application (Civil) No. 501 of 2014 filed before this Honâble Court. To the best of knowledge of the deponent, he has never written any letter dated 20.09.2014 is filed in the aforesaid case. If any such letter dated 20.09.2014 is filed in the aforesaid transfer application, the same is denied by the deponent. It appears that (if at all) aforesaid letter dated 20.09.2014 is a forged document prepared and produced by the parties to the litigation.â

22. All these paragraphs have been sworn by Contemnor no.1- deponent of the affidavit, on personal knowledge.

23. Contemnor 5, Raghunath Das Bisnoi had filed a separate reply through Sri Suresh Gupta, Advocate, and Sri V.P.Srivastava, Senior Advocate. A preliminary objection is taken that as per

Rule 6 of Chapter XXXV-E of Rules of the Court, 1952

(hereinafter referred to as â1952 Rulesâ), notice has not accompanied copy of SMS message sent by Informant-Presiding Officer, statement of witnesses and other documents. In the message sent by Informant-Presiding Officer, Contemnor 5 was not referred or named. Inquiry report shows that offence under Section 228read with 323 IPC was committed, hence, in view of proviso to

Section 10 of Contempt of Courts Act, 1971

(hereinafter referred to as âAct, 1971â), no cognizance could have been taken. The Informant â Presiding Officer ought to have lodged a complaint under Section 340 Cr.P.C. S.O. (Vig.) did not frame any issue regarding identity of persons actually involved in the incident dated 18.11.2014 (though incident given rise to this criminal contempt is dated 20.11.2014 but in para 3(IV), Contemnor no.5 has mentioned the date of incident as 18.11.2014). In detailed reply, it is said that S.O. (Vig.) has taken note of various incidents occurred during 20.10.2014 to 24.11.2014 though the inquiry was confined to the incident dated 20.11.2014. Contemnor 5 neither participated in the incident nor was present in the Court nor in the vicinity of Court of Informant â Presiding Officer. Wife of Contemnor 5 is a patient of Multiple Myeloma (Blood Cancer) for the last three years and under treatment of Experts of Apollo Cancer Institute, New Delhi; Tata Memorial Hospital, Mumbai; Vendanta Hospital Gurgaon, Haryana and Rajeev Gandhi Research Institute, New Delhi.

24. Contemnor 5 had no time to indulge himself in politics of Bar Association and appears in Court when his case is taken up in respective Courts. On 20.11.2014, when resolution was passed by Association, Contemnor 5 was neither present nor signed the said resolution. Informant â Presiding Officer has personal grudge against Contemnor 5 since he was making several complaints under a wrong impression that Contemnor 5 provoked advocates for strike/demonstration against him at the instance of Sri Vinod Kumar Yadav, the then District Judge. The fact is that in three cases, narrated by Informant â Presiding Officer, neither Contemnor 5 was counsel nor had filed any transfer application. Informant â Presiding Officer has not named Contemnor 5 in the message sent to Administrative Judge on mobile and inclusion of his name is an after thought for some other reasons. None of the witnesses mentioned name of Contemnor 5 or his presence in the Court. S.O. (Vig.) himself has found Informant â Presiding Officer guilty of lying in chambers for 7-8 hours and misbehaving with his own staff. S.O. (Vig.) has used the word âpatient of psychiatryâ for Informant â Presiding Officer. No attempt has been made by S.O. (Vig.) to identify the advocates, allegedly involved in the incident.

25. After framing of charge, Contemnors have filed their replies and we may refer the same in brief as under :

26. Contemnor 1: Denying the charge, he has said that in case he is found guilty, he is offering his unconditional apology. However, it is said that S.O. (Vig.), who has relied on statements of (1) EW â 15 â Sri Raj Kumar Sengar (PAC); (2) EW â 16 â Sri Member Singh (PAC); (3) EW â 17 â Sri Ramesh Chandra Bhadauriya â Reader of the Court; (4) EW â 18 â Ram Jiyawan Shukla- Ardaly of the Court; (5) EW â 26 â Sri Neeraj Mishra â Office Peon of the Court; (6) EW â 31 â Sri Arvind Kumar Tiwari â Senior Prosecuting Officer; (7) EW â 32 â Sri Girja Shanker Dwivedi â An Advocate of long standing at Orai Courts; (8) EW â 34 â Sri Kamal Kant Kushwaha â Advocate at Orai Courts; (9) EW â 36 â CP Abeer Singh- Court Moharir of IIIrd A.D.J.; and (10) EW â 47 â Sri Sanjeev Kumar Gurjar â Assistant Government Counsel (ADGC); and if all these statements are taken together, the real picture of occurrence is not clear and free from doubt. There is a witness EW â 23 â Umesh Chandra Dixit, Court Stenographer, whose statement is otherwise. EW â 36 â CP Abir Singh, stated that Informant â Presiding Officer threatened him to depose against Contemnors. EW â 47 â Sanjeev Kumar Gurjar, ADGC, has also deposed against Informant â Presiding Officer. Video recording is nothing but a silent recording and is a manipulated act of Informant â Presiding Officer. The purpose is to remove remarks or abuses or vulgar and unparliamentary statements of Informant â Presiding Officer. The facility of video recording on laptop was not available to subordinate judiciary and the very fact that video recording has been made, shows conduct of Informant â Presiding Officer. Video recording only shows that Police Personnel were trying to obstruct entries of lawyers. Even if lawyers were trying to enter Court room, it cannot be said that purpose of lawyers was to interfere in administration of justice. Advocates are free to move in Court and their entry could not have been obstructed. The presence of Contemnor 1 has not been proved by any independent evidence. Work and conduct of Informant â Presiding Officer itself was objectionable and even if he was not a corrupt officer, he had no licence to misbehave with others. The comments and findings recorded by S.O. (Vig.) against Presiding Officer fortify this inference.

27. Contemnor 5 in his separate affidavit has stated that in the statements given by various witnesses, who are employees of the Court, Police Personnel or Government Advocates i.e. EW-15, 16, 17, 20, 23, 24, 26, 31, 36 and 42, his presence has not been found at the time of incident. Contemnor 5 has been falsely implicated by Informant â Presiding Officer.

28. Contemnor 6 is 68 years of age and has a practice in law for the last 40 years. Against Informant-Presiding Officer, two complaints were made thereupon District Judge made inquiry and submitted report but no action has been taken by Court, which encouraged Informant-Presiding Officer to behave arrogantly and use derogatory words to the advocates and others. In Special Trial No.73 of 2005 (State Vs. Navi Bux) under Section 135 Electricity Act, P.S. Kotwali Orai, Contemnor 6 was appearing as counsel for accused and vide judgment dated 22.04.2014, Court convicted accused and sentenced for two years rigorous imprisonment and fine of Rs.75,000/-. The judgment was delivered at 3:30 P.M. Contemnor 6 prepared applications for providing certified copy of judgment, and to stay fine and enlarge accused on bail. The applications were not received in the Court and instead Informant-Presiding Officer retired to his Chamber. Ultimately, accused was released on bail by High Court in Criminal Appeal. Contemnor 6 personally met District Judge and made complaint against conduct and behaviour of Informant-Presiding Officer. He also moved an application before President, Bar Association on 22.4.2014 whereupon resolution to boycott judicial work of Court of Informant â Presiding Officer was passed from 24.4.2014 to 30.04.2014. For this reason, Informant â Presiding Officer got annoyed with Contemnor 6 and included his name in the present criminal contempt matter. On 20.11.2014, when the incident took place, Contemnor 6 was in the Court of Chief Judicial Magistrate in Case No.2052 of 2013, Roop Singh Vs. Rakesh & Ors., under Sections 147, 148, 323,307, 504, 506 IPC, P.S. Kalpi, District Jalaun. Contemnor 6 is not shown in the video footage and none has named him except Informant-Presiding Officer. Contemnor 6 is in legal practice for the last 40 years and all employees are well known by him by his name and fact. If Contemnor 6 would have been present in the Court, then the employees of Court would have immediately identify him and told his name.

29. Contemnor 9 in his separate affidavit/reply has stated that neither in any report of S.O. (Vig.) nor in video recording there is anything to implicate him and there is nothing to show his presence in the Court. Further video recording is not admissible in evidence as there is no voice hence it is a tempered evidence. When the incident occurred, Contemnor 9 was in the Court of Chief Judicial Magistrate and was coming from that Court. Then again some allegations are made against Informant â Presiding Officer.

30. Contemnors 2, 3, 4, 7, 8, and 10, have filed their replies, though separately, but taken stand similar to the reply given by Contemnor 1 hence we are not repeating the same.

31. When the matter was taken up for arguments, learned Senior Advocate appearing for Contemnors, except Contemnor 5, stated that defence taken by Contemnors in their affidavit may be perused by the Court. No argument with regard to legal or preliminary objection has been advanced and instead it is said that entire material on record show that even if some incident has taken place on the fateful day, advocates are not solely responsible for the same but there was ample contribution on the part of Informant â Presiding Officer. It is in these facts and circumstances, Court may examine the matter and take a decision so as to do justice throughout.

32. Learned Senior Advocate fairly stated that being an officer of Court, it is the bounden duty of all advocates to ensure that majesty and authority of Court is maintained by all concerned. Whatever may be the reason, no one has any justification to create a scene in Court, disturb court proceedings, raise slogans and address Court in an abusive manner and all these things are unpardonable. Since these activities are found to lower down authority of Court in the eyes of general public, it may have a serious impact on the very authority of institution. People have great faith and confidence in the institution of justice. Officers of the Court i.e. advocates, therefore, are duty bound to maintain absolute dignity, majesty and authority of the Court and behave in a proper disciplined manner. Even if there is some wanting conduct on the part of Informant â Presiding Officer at a particular point of time, the remedy lies elsewhere but not by creating a scene in Court i.e. by destroying the items kept in Court or by showing disrespect to the Chair. When a contemptuous conduct is shown in Court, it is not to show disrespect or to lower down authority of an individual but the institution and the Court itself, therefore, anybody, if has adopted ways and means having effect of lowering down authority of Court, is open to face appropriate action under the Provisions of Act, 1971. Having said so, learned Senior Advocate, however, submitted that all Contemnors implicated in this matter are not guilty of allegations levelled against them, and, in any case, there is no sufficient evidence to show that all ten Contemnors were present at the time of incident and did whatever they are charged for.

33. It is pointed out that Contemnors 1, 3 and 4 are visible in video recording and have also been named by Informant â Presiding Officer. Contemnors 5 and 6 are not visible in video recording but named by Informant â Presiding Officer. Contemnors 2, 7, 8, 9 and 10 are neither visible in video recording nor named by Informant â Presiding Officer.

34. On the request of Court, Contemnors have also identified other advocates visible in video recording, who are not named by Informant â Presiding Officer and, therefore, proceedings have not been initiated against them, and, they are; Navneet Sagar Pathak, Shanker Lal Tarsolia, Ram Lakhan Singh Chauhan and Upendra Pratap Singh.

35. With regard to authenticity of video recording, learned Senior Advocate has submitted that; length of recording is 31.12 minutes with gap of 7 â 8 minutes. It is in three parts i.e. (i) prior to entry of Advocates; (ii) on and after entry of Advocates; and (iii) after alleged incident showing peaceful functioning of Court. First part shows broken window glass panes lying on the floor. video recording is personal property of Informant â Presiding Officer, prepared by himself, on his laptop fitted with camera; It is soundless/silent video does not show either Informant â Presiding Officer or alleged manhandling, assault etc.; The other persons visible in video recording, also identified by Contemnors, are, Sanjeev Gurjar, Advocate, Additional District Government Counsel, A.K.Tewari, Senior Prosecuting Officer, five male and one female police personal, few clients and accused persons, peon of the Court. In the third part of video recording i.e. after the incident, it also shows presence of one Sub-Inspector, Gunner of District Judge and few Policemen with Dandas.

36. Sri Sudhir Mehrotra, learned Advocate, appointed by court for assistance, contended that incident of forcible entry in the Court room, slogans shouting, abuse and manhandling is proved and presence of most of the Contemnors, in particular all Contemnors except Contemnors 5 and 6 is also well evidenced from record. Looking to the nature of conduct shown by Contemnors in Court not only charge of criminal contempt is well proved but they do not deserve any sympathetic consideration and instead most severe punishment deserve to be awarded so that in future no one else may dare to show such conduct.

37. The facts narrated above and record at least show undoubtedly that a group of advocates led by Contemnor 1 created a scene in the Court of Informant â Presiding Officer on 20.11.2014 in which some property of Court was damaged, Presiding Officer was manhandled and some advocates also sustained injuries. Informant â Presiding Officer though has named, before S.O. (Vig.), Contemnor 1 to 6 but in video recording made available to the S.O. (Vig.) and viewed by us also, presence of Contemnors 1, 3 and 4 is clearly visible and established. Besides, report shows that Contemnors 7, 8, 9 and 10 sustained injuries in the incident, which took place on 20.11.2014. In reply to the charge, all these Contemnors have filed their separate affidavits but we find not even a single averment or assertion that these Contemnors did not sustain injury at all and if they sustained injuries, how and in what manner, and kind of injuries they sustained, is also not explained.

38. One Constable Abir Singh, Court Moharir, had also sustained injuries when he tried to save Informant â Presiding Officer.

39. Though a technically objection has been raised that video recording is not admissible in evidence or that it was a private property but suffice it to mention that criminal contempt proceeding initiated by Court are not to be proceeded like a criminal trial where provisions of Code of Criminal Procedure and Evidence Act are applicable. These statutes are not applicable in contempt proceedings. The basic purpose of entire procedure is to find out whether Contemnors have shown any such conduct, which amounts to âcriminal contemptâ of Court and for that purpose manner in which evidence has been collected is not relevant but it is the substance and creditworthiness of evidence which can be and has to be seen.

40. Damage of CPU, pen holder and window panes is well established. Nobody has either denied above damage nor has attempted to explain the same.

41. Contemnor 1 and some other advocates had some complaint against Informant-Presiding Officer. They repeatedly participated in resolutions of Bar Association for boycotting/abstaining Court of Informant-Presiding Officer. This is well admitted. Contemnor 1 has specifically pleaded that Informant-Presiding Officer, even if honest, that does not give him any licence to misbehave. Meaning thereby, integrity of Informant-Presiding Officer has not been doubted even by Contemnor 1, who has led entire episode to fight with Informant-Presiding Officer, with other colleagues and have shown no misery in using all contemptuous words against Informant-Presiding Officer.

42. The defence, put up by Contemnors, is quite natural since it is not expected that they would accept guilt silently and without any protest. But factum that integrity of Informant-Presiding Officer has not been doubted even by Contemnor 1 and also evidence collected by S.O. (Vig.) showing that some advocates including officer bearers of Bar Association wanted favourable orders or favourable treatment in Court of Informant-Presiding Officer and having failed in their attempt, all these activities was done, show that there was an intentional and deliberate attempt either to knee down Informant-Presiding Officer or to get him removed by way of his transfer elsewhere. This is a conduct, whether shown by all Contemnors or some of them, but, seriously objectionable as it, ex facie, constitute âcriminal contemptâ of Court. It satisfies all ingredients of definition of âcriminal contemptâ as defined under Section 2(c) of Act, 1971.

43. This is also unfortunate that Contemnors and their colleagues got encouraged in going to this extent due to, either lack of appropriate administrative steps taken by District Judge or due to his silent support and encouragement. The reasons given by Informant-Presiding Officer with regard to apathy on the part of the then District Judge has not been found without any basis by S.O. (Vig.). However, in the present contempt, we are confined ourselves only to the question of âcriminal contemptâ by Contemnors and not to other aspect of the matter.

44. Before proceeding further, we may consider some legal issues in the matter. One of the contention is that incident, if has actually taken place, amounts to an offence and, therefore, contempt proceedings would not lie.

45. Similar issue was considered in

State of M.P. Vs. Revashankar, AIR 1959 SC 102

in which Court said that an aspersion cast upon Court or Presiding Officer, sitting in a Court, is much more than a mere insult to learned Presiding Officer. In effect, it amounts to scandalize the Court in a way so as to distrust in popular mind and impair confidence of people in Courts. Therefore, irrespective of the fact that loss or damage of Court property may satisfy requirement of offence under some provisions of IPC, the act of Contemnor, which scandalize or tends to scandalize or lowers or tends to lower authority of the Court is a âcriminal contemptâ and has to be dealt with in accordance with provisions of Act, 1971.

46. In

Re: Arundhati Roy, AIR 2002 SC 1375

Court held that offence under IPC is different than Contempt of Court. The law of defamation under Penal Code cannot be equated with law of contempt of Court in general terms. Relying on Privy Council decision in

âalthough contempt may include defamation, yet an offence of contempt is something more than mere defamation and is of a different characterâ.

47. What is made punishable under various provisions of IPC offence of damage of a public property, obstruction in function of a public servant etc. but is foreign for proceeding for contempt of Court. If an act satisfy definition of âcriminal contemptâ, as defined under Section 2(c) of Act, 1971, proceedings for such act can be taken only under Act, 1971 quite apart from the fact that other remedy may also be open to aggrieved officer under various provisions of IPC.

48. It has also been argued that incident was aggravated by Informant-Presiding Officer, who got down from dias and indulged in shuffling with Advocates. In this regard we have been taken through report of S.O.(Vig.). The submission is attractive but we failed to understand how one can expect a person, who is facing a charged atmosphere, having several advocates before him abusing, shouting, throwing pen-holders, CPU in Court room, damaging glass panes and attempting to hold him, will silently suffer entire incident and shall not show even a minimum possible resistance, which a normal human being could have done in such atmosphere. This may be seen by some as counter attack. We have to look into it visualising that situation and a normal behaviour expected from a person of ordinary prudence facing such a situation. The advocatesâ attitude, who forcibly entered Court room was clearly hostile and threatening. Their anger is writ large from the fact that some Court and members of Bar, besides Police Constable, also who tried to defend Informant-Presiding Officer, sustained injuries. If, in such an atmosphere, Informant-Presiding Officer also hit one or two advocates an attempt to protect himself, it is difficult to hold that it is a case of attempt of manhandling by Informant-Presiding Officer and not an attempt on his part of possible self-defence. We find no reason to take this act on the part of Informant-Presiding Officer, even if correct, to mitigate in any way the act of âcriminal contemptâ of Contemnors, which is a multifarious and multifaceted act of lowering down authority of Court and to scandalize it.

49. The next objection is with regard to video recording. Though it has been pleaded that video recording may possibly be tempered etc., but no such Expertâs opinion has been brought on record though copy of video recording was also made available to all Contemnors. The only objection raised is that recording, made available, has no sound. However, whatever is visible itself is sufficient to give an idea about the incident, which had taken place in Court. It is fortified with other material on record. It cannot be said that what is being depicted in video recording is incorrect or show inconsistency so as to suffice to disbelieve the very incident.

50. Though we have already held that in contempt proceedings, provisions of IPC and Evidence Act, as such, are not applicable but even if applicable, we find that scientific and electronic evidence is admissible in the light of Section 65B of the Evidence Act.

51. The incident of forcible entry into Court room, disturbance in Court room, damage to Court property, abuse, assault and manhandling of Informant-Presiding Officer, from the discussions made above, is well established. The presence and participation of Contemnors 1, 3, 4, 7, 8, 9 and 10 is also established. It is really a disturbing case where Officers of Court had created such an abhorrent scene in Court for some petty personal gains or otherwise.

52. We are of the view that above act and conduct constitute âCriminal Contemptâ, as stated, and charge stands well established against Contemnors 1, 3, 4, and 7 to 10. We hold them guilty of criminal contempt.

53. We may notice at this stage that Jalaun at Orai is not a very old District Judgeship. Number of Judicial Officers is much less comparing to number of advocates practicing thereat, which is about 600 to 700. Judicial Officers are regularly transferred, therefore, their tenure at a station is short but Class III and IV staff, normally remain posted in same district, are always in constant touch with members of Bar and for various reasons, different relations develop among them. We find that whenever such an incident has taken place, advocates in general get united and evidence against their conduct becomes a difficult task for the reason that neither advocates nor even lower staff is readily available or dare to give evidence in respect of incident, if had taken place in the Court.

54. Jalaun is a place where number of criminal cases are very high in comparison to civil litigation. Judicial Officers work under great stress from day one, when they deal with applications filed under Section 156(3) Cr.P.C. or consider bail applications, what to talk of substantive trial. Whenever an Officer, who is tough in the sense that he is known for his hard decisions in criminal matters, advocates find him mostly inconvenient and relentless efforts are made to get such an officer transferred at the earliest or to get subdued.

55. Looking to the crime control machinery and its attitude in the State of Uttar Pradesh, we have no hesitation in observing that our Judicial Officers in Subordinate Courts, who want to discharge their duties with great devotion and integrity, find a very difficult task to deal with situation like the one, we are confronted with. That is one of the major reason that we find a large number of cases of criminal contempt across the State. The Bench presided over by one of us (Sudhir Agarwal,J) has dealt with more than fifty such a cases decided finally in the last one and half year.

56. It is the constitutional obligation of High Court to protect and save honour, dignity and authority, not only of subordinate Court but Judicial Officers also, manning the same. It is also our duty to ensure fearless atmosphere in which they may function without any cause of apprehension. Foundation of judicial system is based on independence of those, who man it. This can be ensured by providing a safe, well protected and well guarded working atmosphere to Judicial Officers working in subordinate Courts so as to ensure work with desired devotion and integrity. No one, whether a litigant or an advocate or any one else can be allowed to lead a demonstration so as to tarnish and destroy system of administration of justice by vilification of a Judge.

57. It is said that Judges need no protection. They are well capable of taking care themselves but when question of assault, manhandling arises, where an individual gets out-classed by large group of persons engaged in such activities, it is not judicial capability of such individual but on the spot capability of those who had indulged in such an activities, which has to be taken care, else it will be difficult for us to ensure a fair, unbiased and independent functioning of a Court of law. We have to take care of such a situation.

58. In this case we are really shocked and disturbed to see that officer responsible for appropriate action i.e. District Judge himself failed in tackling the situation.

59. In

Jennison Vs. Baker 1972 (1) All ER 997 (CA)

it was observed,

ââ¦ The law should not be seen to sit by limply, while those who defy it go free, and those who seek its protection lose hopeâ.

60. Contemnors though have made statement of apology also in their affidavits, but, it is not only conditional but an attempt to avoid any sentence, in case case they are held guilty. It does not appear to be a bona fide repentance on their part showing an attitude of feeling guilty and forwarding an assurance that they are, by heart, intends to purge, assuring not to repeat the same in future. It is not a technical regret /apology, which a contemnor is expected to offer to Court. It is not a weapon of defence to purge guilty of the wrong, one has committed. It is not intended to operate as an universal panacea, but it is intended to be evidence of real contriteness.

61. In

Mulk Raj Vs. State of Punjab, (1972) 3 SCC 839

Court held that apology is an act of contrition. Unless an apology is offered at the earliest opportunity and in good grace, apology is shorn of penitence. If apology is offered at a time when Contemnor finds that the Court is going to impose punishment, it ceases to be an apology and it becomes an act of cringing coward.

62. In the present case, on one hand, Contemnors appears to have tendered apology but simultaneously have made serious aspersions against Informant-Presiding Officer and Court, and, have pleaded all defence for their deeds. The apology, therefore, being shallow, artificial and lacking bona fide, cannot be accepted.

63. Now, coming to the question of sentence and punishment, we find that role of individual Contemnors is not to be seen for the reason that in collusion with common intention, they have caused incident by forcibly entering Court room, disturbing Court proceedings, damaging Court property, abusing and assaulting Judicial Officer. Since all the Contemnors have participated with a common intention, factum that any individual has actually abused or assaulted Informant-Presiding Officer or not, is not material, but every Contemnor is equally responsible and guilty of committing criminal contempt of Court and responsibility of all Contemnors is equal.

64. Looking to the entire facts and circumstances, we award punishment of six months simple imprisonment upon Contemnors 1, 3, 4, 7, 8 9 and 10 and fine of Rs.2,000/- (Rupees Two Thousand only).

65. In order to ensure smooth functioning of Court, we also direct that Contemnors 1, 3, 4, 7, 8, 9 and 10 shall not enter Court premises of Jalaun at Orai for a period of one year, which shall commence from 23rd September, 2016. Further, conduct and attitude of Contemnors after expiry of aforesaid period, if they start practice of Law in Judgeship Jalaun at Orai, shall under constant watch of District Judge, Jalaun at Orai for a period of three years and if he finds any untoward activity on the part of Contemnors, he shall report to this Court forthwith.

66. So far as Contemnors 2, 5 and 6 are concerned, they are held not guilty and contempt proceedings initiated against them are dropped and they are discharged.

1. After delivery of the judgment, Contemnors 1, 3, 4, 7, 8, 9 and 10 state that sentence in their case may be deferred to enable them to avail remedy of appeal under Contempt of Courts Act, 1971.

2. We, therefore, suspend our order of punishment of sentence of simple imprisonment made against Contemnors 1, 3, 4, 7, 8, 9 and 10 for a period of two months to enable them to file appeal under Section 19, if so advised. In case no appeal is filed, and, if filed, and no otherwise order is passed by Appellate Court, the aforesaid Contemnors shall surrender themselves after expiry of the period of two months i.e. on 23.11.2016 before Chief Judicial Magistrate, Jalaun at Orai, who shall take appropriate steps for getting Contemnors serve sentence of imprisonment imposed upon them under this order.

3. So far as amount of fine is concerned, Contemnors may pay the same either in this Court or with District Judge, Jalaun at Orai or with Chief Judicial Magistrate, Jalaun at Orai within three months.

1. In the present appeal the respondent- wife challenges an order dated 13.12.2001 of the Delhi District Court, which dissolved the marriage of the parties on the ground of cruelty. The parties to the dispute were married on 24.12.1975 at Meerut and they were blessed with two children in the year 1976 and 1983. The petitioner/husband at the time of filing of the divorce petition was employed with the Central Reserve Police Force (CRPF) as a Commandant. The divorce petition, which was initially filed before the Family Court, Meerut, was transferred to Delhi by an order, dated 28.03.2000 of the Supreme Court.

2. The petitioner/husband alleged that he and his family members were treated with cruelty by his wife (the appellant); she did not like his family members visiting their house, did not like his father to reside with them and that she was abusive towards him and all other family members. The husband alleged further that the wife had humiliated his father on several occasions and further, insulted and abused him as well in the presence of his family members, members of his staff, his superior officers and servants on several occasions and had also leveled false allegations against his character. He alleged that despite his requests, she did not correct herself, continued with the same abusive and insulting attitude and further used to threaten to commit suicide and involve him and his family members in false cases. It was alleged that the wife was acting at the instance of her mother, sister Indra Singh and brother in law Satbir Singh, who used to interfere in the matrimonial affairs of the parties, against the husbandâs wishes.

3. The husband alleged that in March, 1996 the wife had called certain bad characters into the matrimonial home, who threatened to kill him. In addition, she had filed several false complaints against him including the complaint to the Executive Magistrate under Sections 107/111 Cr.P.C. on 13.04.1989, to the CRPF, (leading to his transfer several times- which had adversely affected his career prospects). On one of such complaint led to his transfer from Jammu to Assam â this had also caused mental agony to him. It was alleged that newspapers, published reports of his wifeâs involvement in criminal cases, which affected his reputation in the eyes of his colleagues, friends and staff. The wife and their son Vikram were involved in criminal cases under Sections 363/366 I.P.C. and an FIR was registered for kidnapping of a minor girl on 04.07.1996. The wife was also involved in other criminal cases under Sections 448/504/506/34 IPC. The wife did not allow his brother to stay in the house. She also withdrew herself from his company and stopped having any relation with him. It was alleged that her behavior had caused severe mental pain and agony and that he could not live with her as he was apprehensive of his life and felt unsafe.

4. The appellant in her written statement had controverted all the allegations in the husbandâs petition. She alleged that he had deserted her and the children since he developed intimacy with a Kashmiri family and had emotions for a woman in that family. It was alleged that the husband was not adequately providing for their daily necessities. She did not deny however, objecting to the stay of the husbandâs brother in their house but justified it alleging that the brother was involved in a murder case and she did not felt safe with him. She also denied that the petitioner/husband was transferred from Jammu to Assam on her complaint and alleged that in fact she had requested the higher officers for the transfer of him to Delhi and not elsewhere. It is submitted that she and her son were falsely implicated in the kidnapping of the minor girl.

5. In the replication the petitioner/husband had reiterated all his contentions and had further stated that in the year 1993 his father came to Delhi to stay with him but due to the appellant/wifeâs aggressive behavior he had to stay in the battalion. It was further submitted that he was not properly invited in the marriage of their son performed on 12.10.1999 as the invitation was sent by post â which amounts to an act of cruelty by the appellant.

6. In support of his case the petitioner/husband had examined himself and the appellant had examined herself (PW1) son (PW2) and daughter (PW3).

7. The learned trial judge concluded that the husband had established cruelty on the part of the wife. For holding so, the court took into account copies of letters written to the husbandâs employer and the press, including copy of letter dated 06.04.1999 to the Crime Branch, photocopy of letters dated 12.06.1999, 05.03.1999 and 15.01.1999 to the Director General, CRPF copy of complaint dated 09.08.1999 filed before Smt. Mamta Sehgal, Member Secretary, Legal Aid Cell, Patiala House, Delhi. The documents, a copy of the FIR No.224/1996, PS Naraina dated 10.07.1996 against wife and their son under Sections 366/511 IPC; copy of another FIR No.380/1996, PS Naraina dated 13.10.1996 under Sections 448/504/506/34 IPC against wife showing her an accused. Likewise, a notice under Sections 107/111 Cr.PC received by him from the Executive Magistrate, South West, Delhi wherein he was asked to furnish bail bond, the summons received from the said court for appearance on 26.06.1989 and his reply in the said court on 06.07.1989 were also produced. The crime against women (CAW) cell of Delhi Police notices, undertaking by the wife before that body whereby she promised not to quarrel with him in future, too, was produced. The CAW investigation cell report, which found that the complaint was false, was considered. The petitioner had placed reliance on a letter written by him to SHO, PS Vinay Nagar informing him that his wife had been threatening to commit suicide and his letter written to Director General, CRPF in March, 1999 explaining the problem he had been facing because of the false complaints repeatedly made by his wife. Letters written by the husband and his mother in law were produced.

8. The trial court considered the line of questioning on behalf of the wife, including a suggestion given to the petitioner/husband in his cross- examination that the wife did not like the presence of the family members of the respondent, and his answer. The trial court held that these materials showed that the wife did not like the husbandâs relatives and resented if they went to the matrimonial home. The learned judge also observed that the suggestions in the cross-examination to the effect âwhether he had illicit relationship with the Kashmiri girlâ, was contrary to the pleadings of the respondent as she had not set up the case that the respondent was having an illicit relationship with any such lady. The court was of the view that the only plea urged in the written statement was that the petitioner/husband husband was having an inclination towards a Kashmiri family and there was no allegation of him having an illicit relationship with a Kashmiri lady and thus held that leveling such allegations amounted to mental cruelty specially when she had failed to produce any evidence to substantiate this plea. The learned Judge noted that in the cross examination, the wife did not dispute the husbandâs statement that whenever he visited Delhi he was not allowed to enter in his official flat allotted to him, where the rest of the family used to reside. The court further noted that the wife had admitted her fault and promised to change, before CAW cell. That she did not dispute the husbandâs statement about a compromise in the proceedings under Section 107/111 Cr.PC and that in that compromise she had admitted her fault was also noticed.

9. The Trial Judge held that the husband being a senior official CRPF was bound to feel humiliated due to the false proceedings initiated by his wife before the Executive Magistrate and that it had lowered his reputation in the eyes of not only his seniors but also his juniors. The document KA-1 dated 25.05.1989 records the appellantâs undertaking before the police that âshe will not fightâ. The registration of the FIR against the wife and the son for kidnapping a minor girl and wide publicity in the newspaper was considered by the learned Judge who then held that this had subjected the husband to ridicule. The Learned Judge has also noted that the letters written by husband to his wife, son and daughter showing his sufferings, were not disputed either by wife or the children in their testimonies. The impugned judgment also considered the fact that in the marriage of the son, the wife did not invite the husband at all and it was only the son who had sent the card and made a telephone call. Furthermore, the wifeâs false deposition that no invitation card was printed, though her witness deposed to the contrary, was noticed. The learned Judge has also relied on the letter as Ex.RW2/P1 addressed to the Director General, CRPF written by son and daughter who in their testimonies had admitted their signatures on it. In this letter they had stated that the various complaints and allegations made by their mother to the Director General, CRPF; National Human Rights Commission, Member Secretary; Legal Aid Cell and Crime Branch etc. were false and contained no truth. The court rejected the argument that the letter was written at the instance of the father for seeking his posting out of Assam. Taking into account the cumulative effect of the evidences on record the Ld Judge held that the appellant/wife treated the petitioner/husband with cruelty and that she had failed to discharge her burden to prove that she had never treated him with cruelty or that it was he who had committed cruelty on her.

10. The findings of the Trial court are challenged before us. It is argued that learned judge erred in relying on the letter Ex.RW2/P1 of son and daughter and ignored the fact that the witnesses had clearly stated in their testimonies that their signatures were obtained on these letters for the purpose of seeking transfer of their father from Assam to Delhi. In fact, the husband obtained the said letter fraudulently from the children. Learned counsel argued that the materials on record showed that the husband used to neglect his family and wife and was habituated to not caring for them adequately. It was also submitted that the allegations with respect to the wife being involved in a criminal complaint leading to publication in the newspaper, tarnishing the husbandâs image, are not true. Learned counsel highlighted that the trial court fell into error in disbelieving the wife about the husbandâs involvement with someone else in Kashmir and ignoring the deposition of the daughter, who had stated in her evidence that her father had admitted to relationship with another woman. It was submitted that given these circumstances, the allegations that the wife was indulging in cruel behavior had to be discounted entirely. Learned counsel also submitted that the so called complaints given by the wife did not ultimately lead to any conclusion; in the circumstances, the trial court fell into error in taking them into consideration. Counsel also stated that there was no evidence to show that the wife was always aggressive in her behavior to the respondent/husband or that she was rude to his family members. Counsel submitted that the one instance, which the husband had managed to prove was when she did not wish his brother to visit them; this could not be called unreasonable, given that he was facing criminal â in fact murder- charges.

11. It was argued by learned counsel that the trial court fell into error in giving importance to trivial incidents, to find cruelty by the wife, and overlooking or ignoring material documents and circumstances proved by her. It was argued that the husband neglected his own family and preferred to be away from them at every opportunity. Counsel submitted that the daughter of the couple in court in fact deposed to the husbandâs relationship with another woman. She had specifically stated that her father had admitted to a relationship with another woman in Srinagar. This gave a lie to the protestations of innocence and outrage by the husband.

12. Counsel for the respondent relied on the record, including the documents considered by the trial court and the depositions of witnesses. It was argued that this court should not interfere with the findings of the Trial court, which took into consideration all the evidence to find that the wife behaved cruelly toward the husband. It was submitted that the evidence, both documentary and oral, clearly established that the wife was aggressive and lost no chance to humiliate the husband. Counsel submitted that the wife addressed a series of frivolous and baseless complaints to the husbandâs officers, managed to damage his career and to top it all, leveled serious allegations of marital misbehavior, stating that he was involved with a Kashmiri lady. It was pointed out that the husband, during his posting in Srinagar, had become acquainted with a married couple; the wife went to the extent of labeling them as terrorists. It was urged that too much weight cannot be given to the daughterâs evidence about the so called admission by the husband, her father in this regard. There was no shred of material to substantiate the plea of cruel behavior by the husband, or his neglect of the wife.

13. We have given thoughtful considerations to the rival contentions and the material on record.

14. The evidence on record establishes that the husband was employed in the CRPF and more often than not, was posted out of Delhi. The wife stayed back in Delhi. In 1989, there appears to have been trouble and marital discord; eventually before the Delhi Police, the wife apparently acknowledged that she was quarrelsome and agreed not to fight with the husband in future. The husband alleged, in the evidence that the wife expressed discomfort and did not permit his brother to stay with them. The wifeâs unchallenged explanation to this allegation is that the brother was facing criminal charges for murder. In the light of this explanation, her reluctance cannot be considered unreasonable. Similarly, the husband said that the wife did not permit his family members to live or visit the matrimonial home. Now, as to this, all the three- the wife and the children, have deposed to the contrary; in fact the wife has even produced receipts showing payments made to the doctor and for purchasing medicine, for her father in-lawâs use. This allegation too, is consequentially, baseless.

15. The second set of circumstances relied on by the husband to allege cruelty is that the wife used to address several complaints to his superior officers, which according to him lowered his reputation in their eyes as well as those of his superior officers. Now, the wife does not deny this; in the court deposition she admitted to having sent four complaints (some of them in 1997-98) to the Director General and other superior officers. The explanation given is that the wife was neglected or treated cruelly. However, the wife has not produced any material to support her allegation that she was neglected. She on the other hand, admitted in court that the family used to live in government accommodation whenever the petitioner was posted away from Delhi. Beyond a general allegation- unsupported by any bank account statement etc, there is nothing to prove that the husband failed to provide financial or other material support to his family. Equally, the children who deposed generally talked about neglect; they however did not assert, if so, who supported them and funded their education. The wifeâs allegation about neglect and cruelty by the husband is therefore without any foundation. In the circumstances the husbandâs argument that the wifeâs letters to his superior officers, constituted cruelty as they contained allegations, has merit.

16. As far as previous acts of cruelty and complaints to the police etc. are concerned, this court is of opinion that given the compromise of the parties â long back, resuscitation of those details is impermissible. Once the parties patch up and resume co-habitation, the question of digging up past conduct to prove cruelty â or allege some kind of serial behavior, does not arise. The husband is on record, to the effect that the parties co-habited and had physical relationship till 1994 and not after.

17. As far as the conduct of cruelty attributed to the wife that she manipulated the situation so as to ensure that the husband was not properly invited for their sonâs marriage is concerned, the wife deposed that no invitation card was printed and that the husband was notified on telephone. The son, in his cross-examination admitted that invitation cards were printed and guests were invited. However, concededly the husband was not invited. A familyâs neglect of his father, in these circumstances, having regard to the false evidence of the appellant, is indicative of her true intention. It can under no circumstances be pleasant for a father to be confronted with complete alienation from his children. The deposition of the two witnesses and absence of explanation as to why the husband was not notified properly so that he could be present at the wedding, is not only hurtful; it is also cruel behavior for which the wife is, in part responsible. Her attempt to manipulate the truth is proof of her intention to neglect and sideline the husband in the ceremonies.

18. The appellant had argued that the learned Judge erred in holding that the failure on her part to prove that the respondent had an illicit relationship with a Kashmiri lady amounts to cruelty. The appellant argued that the finding that such an allegation was not proved is contrary to the record. It was submitted that RW3, the daughter clearly stated in her cross examination that the respondent had confessed to her of his relationship with the Kashmiri lady and there was no cross examination in that regard and consequently the husband admitted the appellantâs allegations.

19. At no stage of the matrimonial proceedings-either in the written statement or in any of the previous communications by the appellant to CAW Cell, complaint to Executive Magistrate, to the Director General of the respondent, did she complain of the husband having a relationship with a Kashmiri lady. She had on the other hand, complained that he was having close association with a Kashmiri family. In her written statement too the wife had pleaded that he had inclination towards a Kashmiri family. It is also on record that the Kashmiri family includes the two spouses- husband, wife and three children. In the absence of any allegations of adultery no inference can be raised. Furthermore, in family disputes the evidence should not to be read in isolation but the inference of existence of a fact or set of facts has to be drawn on the basis of totality of facts and the circumstances. It is evident in this case that for the first time: and that too as a voluntary statement, the daughter had deposed that her father had confessed to her about his relationship with a Kashmiri lady. However, in her letter which is Ex.RW2/P1, bearing her signatures she had categorically stated as under:

âWe categorically state and affirm that all these complaints are false and far beyond truth. The mentioned Kashmiri family is well known to both of us and we have visited them on several occasions in Jammu and Srinagar. They are very respected people and there is no truth in the allegations about them or my father. Our father has always given us the best of education and living within his legitimate means and has always guided us on the right path. In fact, both of us being children committed certain mistakes which he has always overlooked and forgive.â

20. The daughter, RW-2, in her cross-examination, nowhere stated that the contents of this letter were untrue. The only statement made was that the father wrote this letter. Even if it were so, nothing had prevented the witnesses, both the son (RW2) and the daughter (RW3) to state in the witness box that the contents of this letter were false. In the light of totality of circumstances, the solitary statement of the daughter that the father confessed to her of his relationship with another woman, that too in the absence of any suggestion in the cross-examination of the husband that he confessed of his relationship to his daughter, this passing statement volunteered to by her is insufficient to prove the husbandâs infidelity even by rule of preponderance.

21. Cruelty under Hindu Marriage Act is advisedly undefined. However, the âCrueltyâ can either be physical or mental or both. Physical cruelty is easy to prove but the mental cruelty depends on various factors. A three â judge bench of the Supreme Court in

Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511

while dealing with the concept of mental cruelty has observed as under:

âThe human mind is extremely complex and human behaviour is equally complicated. Similarly human ingenuity has no bound; therefore, to assimilate the entire human behaviour in one definition is almost impossible. What is cruelty in one case may not amount to cruelty in the other case. The concept of cruelty differs from person to person depending upon his upbringing, level of sensitivity, educational, family and cultural background, financial position, social status, customs, traditions, religious beliefs, human values and their value system.

Apart from this, the concept of mental cruelty cannot remain static; it is bound to change with the passage of time, impact of modern culture through print and electronic media and value system, etc. etc. What may be mental cruelty now may not remain a mental cruelty after a passage of time or vice versa. There can never be any straitjacket formula or fixed parameters for determining mental cruelty in matrimonial matters. The prudent and appropriate way to adjudicate the case would be to evaluate it on its peculiar facts and circumstancesâ¦.â

22. Further, in

Ravi Kumar v. Julmidevi, (2010) 4 SCC 476

the Supreme Court held that cruelty is to be judged from the behavior taking into account the entire facts and circumstances of the case. The court has observed-

âTherefore, cruelty in matrimonial behaviour defies any definition and its categories can never be closed. Whether the husband is cruel to his wife or the wife is cruel to her husband has to be ascertained and judged by taking into account the entire facts and circumstances of the given case and not by any predetermined rigid formula. Cruelty in matrimonial cases can be of infinite varietyâit may be subtle or even brutal and may be by gestures and words.â

23. These authorities underline that it is the total behavior, which is to be taken into account. If one spouseâs consistent behavior shows lack of respect, understanding, faith and also reveals acts intended to- and which have caused pain, discomfort or brought disrespect or disrepute, to the other spouse, such behavior would constitute cruelty. Trust, mutual respect, understanding and commitment sustain marriages. A certain level of tolerance and accommodation to each otherâs propensities, preferences and habits is expected. One cannot and should not expect oneâs spouse to possess identical tastes, temperament and behavioral traits as oneself or one is used to with oneâs family members. Over sensitivities to innocent behavior, attitudes of having oneâs way only cannot but result in mismatch and matrimonial discord. Spouses are expected to be supportive to each other and pillars of strength in adversities.

24. The respondent was posted to Kashmir, at the time when that state bristled with terrorism. The husband as a senior officer of CRPF was expected to shoulder his official responsibilities. In this context the wifeâs letters to his seniors telling them that he had an inclination towards a Kashmiri family, leading to inquiries and his transfer to Assam, caused him serious trouble and embarrassment. It could be reasonably assumed that it affected his standing in the eyes of his staff and colleagues, and this bound to cause him humiliation and anguish, as there was no truth in the complaint.

Beside this the document KA-1 given by appellant in police station that âshe will not fightâ is the admission of the appellant of her conduct.

25. While appreciating the evidence in such matters the Supreme Court in

Deb Narayan Halder v. Anushree Halder, (2003) SCC 3174

has held that the court should rely on evidence, which is contemporaneous. The court observed-

âIn cases where there is a dispute between husband and wife it is very difficult to unravel the true reason for the dispute. After separation when the relationship turns sour, all sorts of allegations and counter allegations are made against each other. Evidence of contemporaneous nature therefore plays an important role in such cases as it may reveal the thinking and attitude of the parties towards each other at the relevant time. Such evidence is usually found in the form of letters written by the parties to each other or to their friends and relatives or recorded in any other document of contemporaneous nature. If really the respondent was subjected to cruelty and harassment in the manner alleged by her, we have no doubt she would have written about such treatment to her friends and relatives with whom she may have corresponded.â

26. In this case the contemporaneous evidence on record is thus important to ascertain the conduct of the appellant towards the husband. The false complaints leading to enquiries, transfers, face loss in front of seniors and staff and subordinates, clearly show that this behavior of the appellant had lowered the husbandâs reputation and professional standing. There was absence of trust, faith and respect for respondent. In the case of

G.V.N. Kameswara Rao v. G. Jabilli, (2002) 2 SSC 296

the Supreme Court had taken into consideration false police complaints as a mental cruelty as it considered that this leads to loss of reputation and standing in the society at the instance of oneâs spouse in view of social status and level of education. Appellant has been persistently cruel towards her husband not only during their stay together but also during the divorce proceedings which is apparent from the fact that she had leveled the unsubstantiated charges of adultery against him. In

the Supreme Court has held that unfounded allegation of adultery is a serious allegation amounting to cruel conduct. Here too, such elements have been established. These factors cumulatively prove cruelty on the part of the appellant, as to entitle the husband to dissolution of the marriage.

27. For the foregoing reasons, this court finds no merit in this appeal; it is dismissed along with the pending applications with no orders as to cost.

Kidnapping for ransom of a 3 year old child and his recovery in a police raid led to a trial by the Sessions Court in which the appellant has been convicted by the judgement dated 15.4.2013.

In this appeal, an issue of juvenility has been raised in the background that the incident in which the appellant is involved is of 15th/16th May 2003. The appellant claims that his date of birth recorded in the High School Examination (Matriculation) record is 15th October 1986 and as such on the date of the incident, he had not attained the age of 18 years, consequently, he was entitled to the benefit of being a juvenile as contemplated under the

Juvenile Justice (Care and Protection of Children) Act, 2000

read with the the

Juvenile Justice (Care and Protection of Children) Rules 2007

framed thereunder.

What appears from the record is that the appellant had moved an application for declaring him to be juvenile before the concerned Court in Session Trial No. 188 of 2004. The prosecution had moved an application for conducting a joint trial of this case along with the Session Trial No. 56-A of 2004 and 188-A of 2004.

The application moved for declaring the appellant a juvenile in Session Trial No. 188 of 2004 was sent to the Juvenile Justice Board and in that file, vide order dated 5.9.2005, the claim of the appellant to declare him a juvenile in Case Crime No. 147 of 2004 and Case Crime No. 148 of 2004, the Juvenile Justice Board rejected the plea of the appellant after getting a medical report from the Chief Medical Officer, Mathura dated 4.7.2005. The order dated 5.9.2005 categorically records that since no other evidence was adduced the parties agreed for the disposal of the application and it was held that the applicant was aged about 19 years on the date of the incident in the aforesaid case crime numbers.

After almost four years thereafter, a prayer appears to have been made in Session Trial No. 188-A of 2004 connected with the same incident praying for declaration of the appellant in the said Session Trial as a juvenile. The matter was examined by the Juvenile Justice Board and on 19.11.2009, the prayer for declaring him a juvenile was rejected by the Juvenile Justice Board against which the appellant filed an appeal on 19.9.2011 in terms of Section 52 of the 2000 Act after a period of almost two years. It appears that at the stage of appeal the matriculation certificate was adduced and pressed for the first time as it conformed to the 2007 Rules. In these proceedings, a reference was made of the application moved for declaring the appellant to be juvenile bearing no. 35-Kha. This was the application, which was moved for sending the file to the Juvenile Justice Board, but prior to that, after the order dated 5.9.2005 referred to hereinabove, a request had been made to send the file to the learned Sessions Court.

Thus two sets of orders came into existence in relation to the claim of juvenility of the appellant, one dated 5.9.2005 and the other dated 19.11.2009.

The appeal, which was against the order dated 19.11.2009 was dismissed on 29.9.2011 and the appellate court recorded all the above noted facts in the said order. What appears from the order dated 29.9.2011 is that this contention of the appellant about declaring him to be a juvenile was dismissed on the observations that were noted including the observation that no appeal had been filed against the order dated 5.9.2005 passed earlier in relation to S.T. No. 188 of 2004.

Faced with this at this stage, the appellant filed an Appeal No. 153 of 2012 against the order dated 5.9.2005, which was dismissed on 4.2.2013 firstly, on the ground that the appeal had been presented after almost seven years and there was no reason to condone the delay and secondly, the appellant had full knowledge of the order dated 5.9.2005, that was subject matter of consideration by the Juvenile Justice Board in the subsequent order dated 19.11.2009 and dismissal of the appeal on 29.9.2011.

These facts have been mentioned clearly in the appellate order dated 4.2.2013.

The appellant, thereafter probably realising the legal obstruction on account of the order dated 5.9.2005 having become final, preferred Writ Petition No. 3438 of 2013 which was dismissed as withdrawn treating it to be infructuous vide order dated 13.10.2014 but with an observation that the right of the petitioner to raise the issue of juvenility shall not be affected in the present appeal.

The judgment in the writ petition dated 13th October 2014 is extracted hereunder :

âLearned counsel for the petitioner submitted that during the course of trial, the petitioner moved an application under Section 7 (a) of the Juvenile Justice Act, 2000 to declare him as juvenile. However, that application was rejected by the court concerned and accordingly, the petitioner was prosecuted under the general criminal law and was convicted by the trial court. Against the said judgment and order of conviction, the petitioner has already preferred criminal appeal in this Court.

Thus, this writ petition has now become infructuous. Learned counsel for the petitioner prays to withdraw this writ petition.

Accordingly, this writ petition is dismissed as withdrawn.

However, it may not affect the right of the petitioner to raise the issue of juvenility in the appeal pending in this Court. â

These peculiar facts, about the subsequent claim of juvenility emanating from the order dated 19.11.2009 rejecting the claim on the ground of excessive delay, and earlier rejection dated 5.9.2005 that was challenged subsequently in appeal, after rejection of the appeal against the order dated 19.11.2009 on 29.9.2011, gave rise to the writ petition that was dismissed on 13.10.2014 with observations noted therein.

A Division Bench that heard the appeal earlier passed the following order on 28.5.2015:-

âHonâble Bala Krishna Narayana,J.

Honâble Mohd. Tahir,J.

Heard learned counsel for the applicant-appellant, learned A.G.A for the State and perused the record.

Learned counsel for the applicant-appellant submitted that the applicant-appellant was juvenile at the time of occurrence in question, so this matter be referred to the Juvenile Justice Board, Mathura for ascertaining the age of the applicant-appellant at the time of occurrence in question.

In view of the submission of the applicant-appellantâs counsel, this matter is referred to the Juvenile Justice Board, Mathura which shall after giving opportunity to the complainant / first informant and the State ascertain the age of the applicant-appellant at the time of the incident in question.

Let a copy of the F.I.R. and charge sheet submitted by the police along with the copy of the order be transmitted to the Juvenile Justice Board, Mathura through District Judge, Mathura for holding an inquiry for the aforesaid purpose. This Court expects that the inquiry shall be completed within a period of one month from the date of receipt of the copy of this order, where after the report shall be submitted by the Board. As soon as the report is received, the Registry shall list this appeal on 20.07.2015 before the appropriate Bench for passing appropriate order.

Order Date :- 28.5.2015â³

Subsequently another Bench passed the following order on 20.7.2015:-

âHonâble Amreshwar Pratap Sahi,J.

Honâble Pramod Kumar Srivastava,J.

Heard Sri Dharmendra Singhal, learned counsel for the appellant.

A plea of juvenility was taken before the Juvenile Justice Board, which was rejected during the course of the trial itself. The appellant filed an appeal against the same which is stated to have been rejected on the ground of limitation. Against the said appellate order, a writ petition no. 3438 of 2013 was filed, but by the time the writ petition came to be decided, the trial court had already convicted the appellant.

The writ petition was, therefore, allowed to be withdrawn with liberty to take this plea of juvenility in this appeal itself.

Consequently, a supplementary affidavit dated 16.10.2014 alongwith an application was filed on which this court passed an order on 28.5.2015 referring the matter to the Juvenile Justice Board once again. What we find is that the issue of juvenility had become final but the writ petition was dismissed as withdrawn with the presumption that the issue has become infructuous. However, while permitting the withdrawal, the court observed that it shall not affect the right of the petitioner to raise issue of juvenility in this appeal. We find from the judgment of the trial court taking notice of this plea of juvenlity in paragraph-4 of the judgment and then after having found that the appellant was not a juvenile, it assumed jurisdiction of trial and has now finally convicted the appellant. In such a situation, Sri Singhal may explain as to how without setting aside or overcoming the order of juvenility that has already been passed, this Court can now proceed once the said issue has been noticed by the trial court while assuming jurisdiction to try the appellant and then proceeded to convict to him. Even otherwise the report of the Juvenile Justice Board has not yet arrived.

Let the matter come up with a fresh report from the court below on Monday i.e. 27.7.2015.

Order Date :- 20.7.2015â³

The report and the order dated 17.7.2015 as desired has been furnished in a sealed envelop sent by the Juvenile Justice Board, Mathura. The same is extracted hereinunder:

[Omitted]

The appellant has been held to be aged less than 18 years on the date of the incident.

Faced with this situation, the Division Bench has framed following questions to be considered to lay down the law correctly:

(i) Whether the right of a juvenile to raise the issue of juvenility can be denied, by dismissing a writ petition as infructuous and then permitting him to raise the issue in a criminal appeal when the same issue had been raised before the Juvenile Justice Board and an appeal had been decided in accordance with Section 52 of the 2000 Act as in the present case, on applying the doctrine of finality?

(ii) Whether the law laid down by prescribing a procedure of allowing the question to be raised in a criminal appeal as an alternate substitute through a miscellaneous application under the judgment dated 13.10.2014 by the learned Single Judge is correct or not?

(iii) Whether in view of the law laid down by the Apex Court particularly in the case of Abuzar Hossain @ Gulam Hossain (supra) and Abdul Razzaq Vs. State of U.P. (supra), the issue presently raised, would also stand covered by the ratio and the observations made therein or not ?

Shri Dharmendra Singhal, Advocate submits that the provisions of The Juvenile Justice (Care and Protection of Children) Act, 2000 is a beneficial piece of legislation for the benefit of the juvenile and the scheme of Act would go to show that once it is substantiated from the record in question that the incumbent was juvenile on the relevant date i.e. commission of the offence, then he/she cannot be sentenced and for this purpose he has proceeded to point out that all such cases are liable to be reopened at any stage and even those matters that have attached finality are also liable to be reopened and in view of this, liberal view should be taken in the matter that would achieve the object of the Act and substantial justice should not be shackled by procedures as justice is not at all handmade of procedures and in view of this, once there is no order of determining age in consonance with sub-rule 3 of Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007, the reference should be answered accordingly.

Shri Imran Ullah, learned Additional Advocate General, on the other hand, contended that closed chapter should not be permitted to be reopened and in view of this, the reference in question should be answered accordingly.

Shri Vimlendu Tripathi, Advocate appearing for the State also supplanted the argument advanced on behalf of the State by submitting that once a competent authority had proceeded to take a decision and full fledged remedial mechanism has been provided for to avail the said benefit and the same has been availed, then collateral challenge is not at all permissible in law and as such, the reference be answered accordingly.

In order to answer the issues that have been so raised, the legislative background as well as relevant statutory provisions holding the field will have to be looked into.

The Parliament felt it necessary that uniform juvenile justice system should be available throughout the country which should make adequate provision for dealing with all aspects in the changing social, cultural and economic situation in the country and there was also need for larger involvement of informal systems and community based welfare agencies in the care, protection, treatment, development and rehabilitation of such juveniles and with these objectives in mind, it enacted

Juvenile Justice Act, 1986

(for short, â1986 Actâ).

Looking to the working of Juvenile Justice Act, 1986 review of its working was carried out, and â1986 Actâ was replaced by the Juvenile Justice (Care and Protection of Children) Act, 2000 (for short, â2000 Actâ). 2000 Act to carry forward the constitutional philosophy engrafted in Articles 15(3), 39(e) and (f), 45 and 47 of the Constitution and same also incorporates the standards prescribed in the Convention on the Rights of the Child, United Nations Standard Minimum Rules for the Administration of Juvenile Justice, 1985, the United Nations Rules for the Protection of Juveniles Deprived of their Liberty (1990) and all other relevant international instruments. Clause (k) of Section 2 defines âjuvenileâ or âchildâ to mean a person who has not completed eighteenth year of age. Clause (l) of Section 2 defines âjuvenile in conflict with lawâ to mean a juvenile who is alleged to have committed an offence and has not completed eighteenth year of age on the date of commission of such offence. Chapter II of Juvenile Justice Act, 2000 deals exclusively with juveniles in conflict with law who are alleged to have committed offence which are otherwise punishable under the general law of crimes.

Section 3 of 2000 Act provides for continuation of inquiry in respect of juvenile who has ceased to be a juvenile. It reads as under:

S. 3. Continuation of inquiry in respect of juvenile who has ceased to be a juvenile

Where an inquiry has been initiated against a juvenile in conflict with law or a child in need of care and protection and during the course of such inquiry the juvenile or the child ceases to be such, then, notwithstanding anything contained in this Act or in any other law for the time being in force, the inquiry may be continued and orders may be made in respect of such person as if such person had continued to be a juvenile or a child.â

Chapter II of 2000 Act deals with juvenile in conflict with law. This Chapter comprises of Sections 4 to 28. Section 4 provides for constitution of juvenile justice board and its composition.Section 5 provides for procedure, etc. in relation to juvenile justice board. Section 6 deals with the powers of juvenile justice board. Section 7 provides for the procedure to be followed by Magistrate not empowered under the Act. Section 18 of the Act prohibits joint proceedings and trial of juvenile and a person who is not a juvenile and the punishment that can be awarded to a juvenile has been provided for in Section 15 of the Act provides for the order that can be passed regarding juvenile. Relevant provisions i.e. Sections 6 is being quoted as under:

S. 6. Powers of Juvenile Justice Board

(1) Where a Board has been constituted for any district, such Board shall, notwithstanding anything contained in any other law for the time being in force but save as otherwise expressly provided in this Act, have power to deal exclusively with all proceedings under this Act relating to juvenile in conflict with law.

(2) The powers conferred on the Board by or under this Act may also be exercised by the High Court and the Court of Session, when the proceeding comes before them in appeal, revision or otherwise.

Section 49 of 2000 Act deals with presumption and determination of age. This Section reads as under:

49. Presumption and determination of age

(1) Where it appears to a competent authority that person brought before it under any of the provisions of this Act (otherwise than for the purpose of giving evidence) is a juvenile or the child, the competent authority shall make due inquiry so as to the age of that person and for that purpose shall take such evidence as may be necessary (but not an affidavit)and shall record a finding whether the person is a juvenile or the child or not, stating his age as nearly as may be.

(2) No order of a competent authority shall be deemed to have become invalid merely by any subsequent proof that the person in respect of whom the order has been made is not a juvenile or the child, and the age recorded by the competent authority to be the age of person so brought before it, shall for the purpose of this Act, be deemed to be the true age of that person.â

Sections 52 and 53 deal with appeals and revision. Section 54 provides for procedure in inquiries, appeals and revision proceedings, which reads as follows:

52. Appeals

Subject to the provisions of this section, any person aggrieved by an order made by a competent authority under this Act may, within thirty days from the date of such order, prefer an appeal to the Court of Session:

Provided that the Court of Session may entertain the appeal after the expiry of the said period of thirty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time.

(2) No appeal shall lie fromâ

(a) any order of acquittal made by the Board in respect of a juvenile alleged to have committed an offence; or

(b) any order made by a Committee in respect of a finding that a person is not a neglected juvenile.

(3) No second appeal shall lie from any order of the Court of Session passed in appeal under this section.

53. Revision

The High Court may, at any time, either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit:

Provided that the High Court shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.

S. 54. Procedure in inquiries, appeals and revision proceedings

(1)Save as otherwise expressly provided by this Act, a competent authority while holding any inquiry under any of the provisions of this Act, shall follow such procedure as may be prescribed and subject thereto, shall follow, as far as may be, the procedure laid down in the Code of Criminal Procedure, 1973 (2 of 1974) for trials in summons cases.

(2) Save as otherwise expressly provided by or under this Act, the procedure to be followed in hearing appeals or revision proceedings under this Act shall be, as far as practicable, in accordance with the provisions of the Code of Criminal Procedure, 1973(2 of 1974).â

In the State of U.P., in exercise of power conferred under

Section 68 of the Juvenile Justice Care and Protection 2000 Act

(Act No.56 of 2000), Rules have been framed known as, the

U.P. Juvenile Justice (Care and Protection of Children) Rules, 2004

(herein-after to be referred to as the âU.P. Rulesâ). The relevant Rule for the purpose of consideration of issue raised before us is Rule 22. Rule 22 reads as follows:

22. Procedure to be followed by a Board in holding inquiries and the determination of age

(1) In all cases under the Act the proceedings shall be conducted in as simple a manner as possible and care shall be taken to ensure that the juvenile or child against whom the proceedings have been instituted is given home like atmosphere during the proceedings.

(2) When witnesses are produced for examination, the Board shall be free to use the power underSection 165 of the Indian Evidence At, 1872, (Act No.1 of 1872), to question them so as to bring out any point that may go in favour of the juvenile or the child.

(3) While examining a juvenile or child and recording his statement, the competent authority shall be free to address the juvenile or child in any manner that may seem suitable, in order to put the juvenile or child at ease and to elicit the true facts, not only in respect of the offence of which the juvenile or child is accused, but also in respect of the home and social surroundings and the influence to which the juvenile or child might have been subjected.

(4) The record of the examination shall be in such form as the Board may consider suitable having record to the contents of the statement and circumstances in which it was made.

(5) In every case concerning a juvenile or child, the Board shall either obtain-

(i) a birth certificate given by a corporation or a municipal authority;

or

(ii) a date of birth certificate from the school first attended; or

(iii) matriculation or equivalent certificates, if available; and

(iv) in the absence of (i) to (iii) above, the medical opinion by a duly constituted Medical Board, subject to a margin of one year, in deserving cases for the reasons to be recorded by such Medical Board, regarding his age and, when passing orders in such case shall, after taking into consideration such evidence as may be available or the medical opinion, as the case may be, record a finding in respect of his age.

(6) The State Government shall recognize voluntary organizations, which have 10 years experience of child welfare to supervise and submit periodical reports, as directed by the Board regarding the orders passed under Clauses (b) and (c) of sub-section (1) of Section 15 of the Act.

(7) The Board shall, in Form-I, order a Probation Officer, or otherwise to conduct a special investigation, reporting on the character and antecedents of the juvenile or child with a view to assess the best possible mode for placement, such as, with the family, an institution or otherwise permissible under the Act.

(8_ When a juvenile or child is placed under the care of a parent or a guardian and the Board considers it expedient to place the juvenile or child under the supervision of a probation officer, it shall issue a supervision order in Form-II.

(9) The competent authority may, while making an order placing a juvenile under the care of a parent, guardian or fit person, as the case may be, direct such parent, guardian or fit person to enter into a bond in Form IV with or without sureties.

(10) Whenever the Board orders a juvenile or child to be kept in an institution, it shall forward to the Superintendent of such institution a copy of its order, in Form III with particulars of the home and parents or guardian and previous record.

(11) The juvenile or child shall be lodged in a home closest to place where he belongs.

(12) The Superintendent of an institution, certified as special home under sub-section (2) ofSection 9 of the Act, shall be informed in advance by the Board before any juvenile or child is committed to it.

(13) The Superintendent of the said institution may, on receipt of the information, intimation in writing objections, if any, to the committal of the juvenile or child and the objections shall be taken into consideration by the Board before the juvenile or child is committed to the said institution.

(14) In case the Board orders the parent of the juvenile or child, or the juvenile or child to pay a fine, the amount realized shall be deposited in Government Treasury.â

By Act 33 of 2006, the Parliament brought significant changes in 2000 Act. Section 7A provides for procedure to be followed when claim of juvenility is raised before any court. Section 20 dealt with pending cases. It reads as follows:

S.7A. Procedure to be followed when claim of juvenility is raised before any court

(1) Whenever a claim of juvenility is raised before any court or a court is of the opinion that an accused person was a juvenile on the date of commission of the offence, the court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be:

Provided that a claim of juvenility may be raised before any court and it shall be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in this Act and the rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of this Act.

(2) If the court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders and the sentence, if any, passed by a court shall be deemed to have no effect.

20. Special provision in respect of pending cases

Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.

Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.âIn all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.] â

The provisions of Act No.33 of 2006 also introduces Section 20 in reference to pending cases by providing a clear cut provision that notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any Court or in any area on the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been passed and if the Court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence. A proviso has also been added that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile. The explanation provided to the same clearly proceeds to make a mention that in all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any Court, the determination of juvenility of such a juvenile shall be in terms of clause (l) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.

From the perusal of the provisions that have been quoted above, it is clearly reflected that under â2000 Actâ, the inquiry in respect of the claim of juvenility was required to be conducted by the Competent Authority having jurisdiction over the proceedings and by means of Act No.33 of 2006 Section 7-A has been introduced in the â2000 Actâ, wherein for the first time in reference of claim of juvenility, which has been permitted to be raised before any Court or where is the Court is of the opinion that an accused person was juvenile on the date of commission of the offence, the Court is entitled to make an enquiry, take such evidence as may be necessary (but not an affidavit) so as to determine the age of such person, and shall record a finding whether the person is a juvenile or a child or not, stating his age as nearly as may be. A proviso has been added to the same clearly providing that the claim of juvenility may be raised before any Court and it is to be recognised at any stage, even after final disposal of the case, and such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder, even if the juvenile has ceased to be so on or before the date of commencement of the Act. Sub-Section 2 of Section 7-A clearly mentions that if the Court finds a person to be a juvenile on the date of commission of the offence under sub-section (1), it shall forward the juvenile to the Board for passing appropriate orders, and the sentence, if any, passed by a court shall be deemed to have no effect.

Thus this particular provision clearly entitles the Court to answer the issue of juvenility on being raised before the Court or even otherwise when Court is of the opinion that an accused person was juvenile on the date of commission of the offence, the Court shall make an enquiry and proceed accordingly.

By insertion of section 7-A, the legislative intent was clear inasmuch as the claim of juvenility could be raised before any Court at any stage, and the Court was conferred power to make an enquiry by taking such evidence as may be necessary to determine the age of such person with a rider that such claim shall be determined in terms of the provisions contained in the Act and the Rules made thereunder. Legislative intent was also made clear by means of Section 64 of J.J. Act to extend benefit of the provisions of the said Act qua juvenile in conflict with law who were undergoing sentence for reviewing their respective case on the parameters of clause (l) of Section 2 and other provisions contained in the Act and the Rules and then taking consequential action. To confer power to the Central Govt. to frame model rules to carry out the purposes of the Act, a proviso to sub section (1) of section 68 was inserted by Act No.33 of 2006. The amended sub section (1) to section 68 along with its proviso reads as under:

68. Power to make rules

(1) The State Government may, by notification in the Official Gazette, make rules to carry out the purposes of this Act.

Provided that the Central Government may, frame model rules in respect of all or any of the matters with respect to which the State Government may make rules under this section, and where any such model rules have been framed in respect of any such matter, they shall apply to the State until the rules in respect of the matter is made by the State Government and while making such rules, so far as practicable, they conform to such model rules.â

Prior to the insertion of the proviso to sub section (1) of section 68 as well as sub section (3) of section 68 by Act No.33 of 2006, there was no provision enabling the Central Govt. to frame model rules in respect of all or any of the matters with respect to which the State Govt. could make rules under the said section. As a result by taking the aid of section 70, which enabled the Central Govt. to remove difficulties, Model Rules were framed in the year 2000, the validity of the same came for consideration before a 5 judges Bench of the Apex Court in the case of

Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551

Honâble S. B. Sinha, J., one of the members of that Bench, in a separate judgment, partly dissenting from the majority view, discarded the Model Rules by holding that it had no statutory backing and held that the court thus would be entitled to apply the ordinary rules of evidence for the purpose of determining the age of the juvenile taking into consideration the provisions of section 35 of the Indian Evidence Act. The relevant observations are contained in paragraphs 107 to 112 of the report, which reads as under:

â107. We, however, do not agree that the Model Rules have been framed in terms of the provisions of the Act so as to attract the principles that rules validly framed are to be treated as part of the Act. It is one thing that the rules validly framed are to be treated as part of the Act as has been held in Chief Forest Conservator (Wildlife) v. Nisar Khan and National Insurance Co. Ltd. v. Swaran Singh but the said principle has no application herein as in terms of the provisions of the said Act, the Central Government does not have any authority to make any rules. In the absence of any rule-making power it cannot refer to the omnibus clause of power to remove difficulty inasmuch as it has not been stated that framing of any model rule is permissible if a difficulty arises in giving effect to the provision of the Act. The Central Government is a statutory functionary. Its functions are circumscribed by Section 70 of the Act only. It has not been authorised to make any rule. Such rule-making power has been entrusted only to the State. The Central Government has, thus, no say in the matter nor can it exercise such power by resorting to its power âto remove difficultiesâ. Rule-making power is a separate power which has got nothing to do with the power to remove difficulty. By reason of the power to remove difficulty or doubt, the Central Government has not been conferred with any legislative power. The power to remove doubt or difficulty although is a statutory power but the same is not akin to a legislative power and, thus, thereby the provisions of the Act cannot be altered. [See Jalan Trading Co. (P) Ltd. v. Mill Mazdoor Union]

108. The age of the delinquent juvenile, therefore, cannot be determined in terms of Model Rule 62. Any law mandating the court to take into consideration certain documents over others in determining an issue, must be provided for only by law. Only a validly made law can take away the power of the court to appreciate evidence for the purpose of determination of such a question in the light of Section 35 of the Indian Evidence Act. It cannot be done by the Central Government in exercise of the executive power (See Union of India v. Naveen Jindal and State of U.P. v. Johri Mal.)

109. In Birad Mal Singhvi v. Anand Purohit this Court held:

âTo render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded.â

(emphasis supplied)

110. In Sushil Kumar v. Rakesh Kumar this Court as regards determination of age of a candidate in terms of Section 36(2) of the Representation of the People Act, 1951 observed:

â32. The age of a person in an election petition has to be determined not only on the basis of the materials placed on record but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of the onus of proof becomes academic [see Union of India v. Sugauli Sugar Works (P) Ltd. and Cox and Kings (Agents) Ltd. v. Workmen]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established.â

111. The Court, therefore, must determine the age of the appellant herein keeping in view our aforementioned findings that the relevant date for reckoning the age of the juvenile would be the date of occurrence and not the date on which he was produced before the Board.

112. The upshot of the aforementioned discussions is:

(i) In terms of the 1986 Act, the age of the offender must be reckoned from the date when the alleged offence was committed.

(ii) The 2000 Act will have a limited application in the cases pending under the 1986 Act.

(iii) The Model Rules framed by the Central Government having no legal force cannot be given effect to.

(iv) The court, thus, would be entitled to apply the ordinary rules of evidence for the purpose of determining the age of the juvenile taking into consideration the provisions of Section 35 of the Indian Evidence Act.â

It appears that the amendment brought by Act No.33 of 2006 was to obviate the outcome of the decision of the Apex Court in the case of Pratap Singh (supra), as has been observed in various decisions of the Apex Court in the case of

Hari Ram v. State of Rajasthan, (2009) 13 SCC 211

has held as follows:

Section 7-A makes provision for a claim of juvenility to be raised before any Court at any stage, even after final disposal of a case and sets out the procedure which the Court is required to adopt, when such claim of juvenility is raised. It provides for an inquiry, taking of evidence as may be necessary (but not affidavit) so as to determine the age of a person and to record a finding whether the person in question is a juvenile or not. The aforesaid provisions were, however, confined to Courts, and proved inadequate as far as the Boards were concerned. Subsequently, in the Juvenile Justice (Care and Protection of Children) Rules, 2007, which is a comprehensive guide as to how the provisions of the Juvenile Justice Act, 2000, are to be implemented, Rule 12 was introduced providing the procedure to be followed by the Courts, the Boards and the Child Welfare Committees for the purpose of determination of age in every case concerning a child or juvenile or a juvenile in conflict with law. Since the aforesaid provisions are interconnected and lay down the procedures for determination of age, the said Rule is reproduced hereinbelow:

12. Procedure to be followed in determination of Age

(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The Court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtaining â

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either

(i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child.

In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year. and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) if the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the Court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia in terms of section 7A, section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.â

Sub-Rules (4) and (5) of Rule 12 are of special significance in that they provide that once the age of a juvenile or child in conflict with law is found to be less than 18 years on the date of offence on the basis of any proof specified in sub- rule (3) the Court or the Board or as the case may be the Child Welfare Committee appointed under Chapter IV of the Act, has to pass a written order stating the age of the juvenile or stating the status of the juvenile, and no further inquiry is to be conducted by the Court or Board after examining and obtaining any other documentary proof referred to in Sub-rule (3) of Rule 12. Rule 12, therefore, indicates the procedure to be followed to give effect to the provisions of Section 7A when a claim of juvenility is raised.

One of the problems which has frequently arisen after the enactment of the Juvenile Justice Act, 2000, is with regard to the application of the definition of âjuvenileâ under Section 2(k) and (l) in respect of offences alleged to have been committed prior to 1st April, 2001 when the Juvenile Justice Act, 2000 came into force, since under the 1986 Act, the upper age limit for male children to be considered as juveniles was 16 years. The question which has been frequently raised is, whether a male person who was above 16 years on the date of commission of the offence prior to 1st April, 2001, would be entitled to be considered as a juvenile for the said offence if he had not completed the age of 18 years on the said date. In other words, could a person who was not a juvenile within the meaning of the 1986 Act when the offence was committed, but had not completed 18 years, be governed by the provisions of the Juvenile Justice Act, 2000, and be declared as a juvenile in relation to the offence alleged to have been committed by him?

Read with Sections 2(k), 2(l), 7A and Rule 12, Section 20 of the Juvenile Justice Act, 2000, as amended in 2006, is probably the Section most relevant in setting at rest the question raised in this appeal, as it deals with cases which were pending on 1st April, 2001, when the Juvenile Justice Act, 2000, came into force. The same is, accordingly, reproduced hereinbelow :

20. Special provision in respect of pending cases

Notwithstanding anything contained in this Act, all proceedings in respect of a juvenile pending in any court in any area on the date on which this Act comes into force in that area, shall be continued in that court as if this Act had not been passed and if the court finds that the juvenile has committed an offence, it shall record such finding and instead of passing any sentence in respect of the juvenile, forward the juvenile to the Board which shall pass orders in respect of that juvenile in accordance with the provisions of this Act as if it had been satisfied on inquiry under this Act that a juvenile has committed the offence.

[Provided that the Board may, for any adequate and special reason to be mentioned in the order, review the case and pass appropriate order in the interest of such juvenile.

Explanation.- In all pending cases including trial, revision, appeal or any other criminal proceedings in respect of a juvenile in conflict with law, in any court, the determination of juvenility of such a juvenile shall be in terms of clause (1) of section 2, even if the juvenile ceases to be so on or before the date of commencement of this Act and the provisions of this Act shall apply as if the said provisions had been in force, for all purposes and at all material times when the alleged offence was committed.]â

The Proviso and the Explanation to Section 20 were added by Amendment Act 33 of 2006, to set at rest any doubts that may have arisen with regard to the applicability of the Juvenile Justice Act, 2000, to cases pending on 1st April, 2001, where a juvenile, who was below 18 years at the time of commission of the offence, was involved. The Explanation which was added in 2006, makes it very clear that in all pending cases, which would include not only trials but even subsequent proceedings by way of revision or appeal, the determination of juvenility of a juvenile would be in terms of Clause (l) of Section 2, even if the juvenile ceased to be a juvenile on or before 1st April, 2001, when the Juvenile Justice Act, 2000, came into force, and the provisions of the Act would apply as if the said provision had been in force for all purposes and for all material times when the alleged offence was committed. In fact, Section 20 enables the Court to consider and determine the juvenility of a person even after conviction by the regular Court and also empowers the Court, while maintaining the conviction, to set aside the sentence imposed and forward the case to the Juvenile Justice Board concerned for passing sentence in accordance with the provisions of the Juvenile Justice Act, 2000.

At this point it may be noted that the decision of the Constitution Bench in Pratap Singhâs case (supra) was rendered at a point of time when the amendments to Sections 2(l) and 20 and the introduction of Section 7-A had not yet been effected, nor was Rule 12 of the 2007 Rules available. Several decisions on the applicability of the 2000 Act to children who were above 16 but below 18 years on the date of commission of the offence have been rendered after the Juvenile Justice Act, 2000, came into force and several others were rendered after the amendments were introduced in the said Act by Amendment Act 33 of 2006 and the introduction of the 2007 Rules. The decisions rendered by this Court and the High Courts prior to 1st April, 2001, when the Juvenile Justice Act, 2000, came into force and thereafter can, therefore, be divided into two groups. The decision in Pratap Singhâs case (supra) and in the case of

Munney @ Rahat Jan Khan vs. State of U.P., (2006) 12 SCC 697

fall into the first category, whereas the decisions in

Jameel v. State of Maharashtra, (2007) 11 SCC 420

Vimal Chadha v. Vikas Chaudhary, (2008) 8 SCALE 608

Babloo Pasi v. State of Jharkhand, (2008) 13 SCALE 137

and

Ranjit Singh v. State of Haryana, (2008) 9 SCC 453

fall into the second category. Although, the Constitution Bench decision in Pratap Singhâs case (supra) and Munneyâs case (supra) are not really relevant since they have been rendered prior to 22nd August, 2006, when the Amending Act 33 of 2006 came into force, they assume a modicum of significance since they have been referred to and relied upon even after the Amending Act and the 2007 Rules came into force on 22.8.2006 and 26.10.2007, respectively.

28. Of the decisions rendered after the amendments effected in 2006 to the Juvenile Justice Act, 2000, the first decision of note is that of Jameelâs case (supra) rendered on 16.1.2007 wherein the amendments to the Act effected by the Amendment Act 33 of 2006, which came into effect on 22.8.2006, were not even noticed. The next decision rendered on 27.5.2008 is in the case of Vimal Chadhaâs case (supra), wherein, although, the amendment of the Act and the introduction of the Juvenile Justice Rules, 2007, were brought to the notice of the Court, the same were not considered and the decision was rendered in the light of the decision rendered in Pratap Singhâs case (supra) and other cases decided prior to 1.4.2001.

The next decision rendered on the same point on 11.9.2008 was the decision in Ranjit Singhâs case (supra) wherein also the amendments to Section 2(l) and 20 and the introduction of Section 7-A in the Juvenile Justice Act, 2000, and the introduction of the 2007 Rules had not been considered and the decision passed sub silentio.

In fact, after the amendment, the Central Govt. made and notified the Rules, 2007, vide notification dated 26.10.2007, and those Rules came into effect from the date of the publication of notification in the Gazette of India, (Extra.), Part II, Section 3(i), dt. 26.10.2007.

The relevant provisions governing the procedure to be followed in determination of age of a juvenile in conflict with law is contained in Rule 12, which provides as follows:

â12. Procedure to be followed in determination of Age.â(1) In every case concerning a child or a juvenile in conflict with law, the court or the Board or as the case may be the Committee referred to in Rule 19 of these rules shall determine the age of such juvenile or child or a juvenile in conflict with law within a period of thirty days from the date of making of the application for that purpose.

(2) The court or the Board or as the case may be the Committee shall decide the juvenility or otherwise of the juvenile or the child or as the case may be the juvenile in conflict with law, prima facie on the basis of physical appearance or documents, if available, and send him to the observation home or in jail.

(3) In every case concerning a child or juvenile in conflict with law, the age determination inquiry shall be conducted by the court or the Board or, as the case may be, the Committee by seeking evidence by obtainingâ

(a)(i) the matriculation or equivalent certificates, if available; and in the absence whereof;

(ii) the date of birth certificate from the school (other than a play school) first attended; and in the absence whereof;

(iii) the birth certificate given by a corporation or a municipal authority or a panchayat;

(b) and only in the absence of either (i), (ii) or (iii) of clause (a) above, the medical opinion will be sought from a duly constituted Medical Board, which will declare the age of the juvenile or child. In case exact assessment of the age cannot be done, the Court or the Board or, as the case may be, the Committee, for the reasons to be recorded by them, may, if considered necessary, give benefit to the child or juvenile by considering his/her age on lower side within the margin of one year.

and, while passing orders in such case shall, after taking into consideration such evidence as may be available, or the medical opinion, as the case may be, record a finding in respect of his age and either of the evidence specified in any of the clauses (a)(i), (ii), (iii) or in the absence whereof, clause (b) shall be the conclusive proof of the age as regards such child or the juvenile in conflict with law.

(4) If the age of a juvenile or child or the juvenile in conflict with law is found to be below 18 years on the date of offence, on the basis of any of the conclusive proof specified in sub-rule (3), the court or the Board or as the case may be the Committee shall in writing pass an order stating the age and declaring the status of juvenility or otherwise, for the purpose of the Act and these rules and a copy of the order shall be given to such juvenile or the person concerned.

(5) Save and except where, further inquiry or otherwise is required, inter alia, in terms of Section 7-A, Section 64 of the Act and these rules, no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of this rule.

(6) The provisions contained in this rule shall also apply to those disposed of cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.â

Rule 96 of the Central Rules provides that until the new rules conforming to these rules are framed by the State Govt. concerned under Section 68 of the 2000 Act, the Central Rules shall mutatis mutandis apply in that State.

Rule 97 of the Central Rules provides that all pending cases, which have not received finality, shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder. For convenience Rule 97 of the Central Rules is being extracted herein below:

â97. Pending Cases.â(1) No juvenile in conflict with law or a child shall be denied the benefits of the Act and the rules made thereunder.

(2) All pending cases which have not received a finality shall be dealt with and disposed of in terms of the provisions of the Act and the rules made thereunder.

(3) Any juvenile in conflict with law, or a child shall be given the benefits under sub-rule (1) of this rule, and it is hereby clarified that such benefits shall be made available to all those accused who were juvenile or a child at the time of commission of an offence, even if they cease to be a juvenile or a child during the pendency of any inquiry or trial.

(4) While computing the period of detention or stay or sentence of a juvenile in conflict with law or of a child, all such period which the juvenile or the child has already spent in custody, detention, stay or sentence of imprisonment shall be counted as a part of the period of stay or detention or sentence of imprisonment contained in the final order of the court or the Board.â

In this regard it would be useful to refer to the decision of the Apex Court in the case of

Ashwani Kumar Saxena v. State of M.P. 2012 Law Suit(SC) 607

In this case, the Apex Court, after considering various judgments as well as the provisions of the Act, 2000 as also the Rules, 2007, in paragraphs 30 to 32 of the report, observed as follows:

â30. Consequently, the procedure to be followed under the JJ Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules. We cannot import other procedures laid down in the Code of Criminal Procedure or any other enactment while making an inquiry with regard to the juvenility of a person, when the claim of juvenility is raised before the court exercising powers under Section 7-A of the Act. In many of the cases, we have come across, it is seen that the criminal courts are still having the hangover of the procedure of trial or inquiry under the Code as if they are trying an offence under the penal laws forgetting the fact that the specific procedure has been laid down in Section 7-A read with Rule 12.

31. We also remind all courts/Juvenile Justice Boards and the Committees functioning under the Act that a duty is cast on them to seek evidence by obtaining the certificate, etc. mentioned in Rules 12(3)(a)(i) to (iii). The courts in such situations act as a parens patriae because they have a kind of guardianship over minors who from their legal disability stand in need of protection.

32. âAge determination inquiryâ contemplated under Section 7-A of the Act read with Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court needs to obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court needs to obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the abovementioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.(Emphasis Supplied) After observing as above, the Apex Court deprecated the practice of the courts in making a roving enquiry with regards to the correctness of the date of birth entered in matriculation or equivalent certificates or other documents unless those documents or certificates were fabricated or manipulated. The relevant observations of the apex court are contained in paragraphs 34 and 35 of the report, which are being reproduced herein below:

â34. Age determination inquiry contemplated under the JJ Act and the 2007 Rules has nothing to do with an enquiry under other legislations, like entry in service, retirement, promotion, etc. There may be situations where the entry made in the matriculation or equivalent certificates, date of birth certificate from the school first attended and even the birth certificate given by a corporation or a municipal authority or a panchayat may not be correct. But court, Juvenile Justice Board or a committee functioning under the JJ Act is not expected to conduct such a roving enquiry and to go behind those certificates to examine the correctness of those documents, kept during the normal course of business. Only in cases where those documents or certificates are found to be fabricated or manipulated, the court, the Juvenile Justice Board or the committee need to go for medical report for age determination.

35. We have come across several cases in which the trial courts have examined a large number of witnesses on either side including the conduct of ossification test and calling for odontology report, even in cases, where matriculation or equivalent certificate, the date of birth certificate from the school last or first attended, the birth certificate given by a corporation or a municipal authority or a panchayat are made available. We have also come across cases where even the courts in the large number of cases express doubts over certificates produced and carry on detailed probe which is totally unwarranted.â

(Emphasis Supplied)

Apex Court in the case ofAbuzar Hossain @ Gautam Hussain vs. State of West Bengal in Criminal Appeal No.1193 of 2006 decided on 10.10.2012 has held as follows:

âNow, we summarise the position which is as under:

(i) A claim of juvenility may be raised at any stage even after final disposal of the case. It may be raised for the first time before this Court as well after final disposal of the case. The delay in raising the claim of juvenility cannot be a ground for rejection of such claim. The claim of juvenility can be raised in appeal even if not pressed before the trial court and can be raised for the first time before this Court though not pressed before the trial court and in appeal court.

(ii) For making a claim with regard to juvenility after conviction, the claimant must produce some material which may prima facie satisfy the court that an inquiry into the claim of juvenility is necessary. Initial burden has to be discharged by the person who claims juvenility.

(iii) As to what materials would prima facie satisfy the court and/or are sufficient for discharging the initial burden cannot be catalogued nor can it be laid down as to what weight should be given to a specific piece of evidence which may be sufficient to raise presumption of juvenility but the documents referred to in Rule 12(3)(a)(i) to (iii) shall definitely be sufficient for prima facie satisfaction of the court about the age of the delinquent necessitating further enquiry under Rule 12. The statement recorded under Section 313 of the Code is too tentative and may not by itself be sufficient ordinarily to justify or reject the claim of juvenility. The credibility and/or acceptability of the documents like the school leaving certificate or the votersâ list, etc. obtained after conviction would depend on the facts and circumstances of each case and no hard and fast rule can be prescribed that they must be prima facie accepted or rejected. In Akbar Sheikh2 and Pawan8 these documents were not found prima facie credible while in Jitendra Singh10 the documents viz., school leaving certificate, marksheet and the medical report were treated sufficient for directing an inquiry and verification of the appellantâs age. If such documents prima facie inspire confidence of the court, the court may act upon such documents for the purposes ofSection 7A and order an enquiry for determination of the age of the delinquent.

(iv) An affidavit of the claimant or any of the parents or a sibling or a relative in support of the claim of juvenility raised for the first time in appeal or revision or before this Court during the pendency of the matter or after disposal of the case shall not be sufficient justifying an enquiry to determine the age of such person unless the circumstances of the case are so glaring that satisfy the judicial conscience of the court to order an enquiry into determination of age of the delinquent.

(v) The court where the plea of juvenility is raised for the first time should always be guided by the objectives of the 2000 Act and be alive to the position that the beneficent and salutary provisions contained in 2000 Act are not defeated by hyper-technical approach and the persons who are entitled to get benefits of 2000 Act get such benefits. The courts should not be unnecessarily influenced by any general impression that in schools the parents/guardians understate the age of their wards by one or two years for future benefits or that age determination by medical examination is not very precise. The matter should be considered prima facie on the touchstone of preponderance of probability.

(vi) Claim of juvenility lacking in credibility or frivolous claim of juvenility or patently absurd or inherently improbable claim of juvenility must be rejected by the court at threshold whenever raised.â

The judgment in Ashwani Kumar Saxenaâs case (supra) has been consistently followed by the apex court in

Jodhbir Singh v. State of Punjab: (2012) 13 SCC 591

Ranjeet Goswami v. State Of Jharkhand: (2014) 1 SCC 588

The scope of Section 7A of the Act and Rule 12 of the 2007 Rules again came up for consideration before Apex Court in

Dharambir v. State (NCT of Delhi) and Another, (2010) 5 SCC 344

wherein the appellant was convicted for offences under section 302/34 and 307/34 IPC for committing murder of one of his close relatives and for attempting to murder his brother. The appellant was not a juvenile within the meaning of 1986 Act, when the offences were committed but had not completed 18 years of age on that date.

Apex Court keeping in view the language of the Explanation to Section 20 that in all pending cases, which would include not only trial but even subsequent proceedings by way of revision or appeal etc., the determination of juvenility of a juvenile has to be in terms of clause (l) of Section 2, even if the juvenile ceases to be a juvenile on or before 1st April 2001, when the Act of 2000 came into force, and the provisions of the Act would have applied as if the said provision had been in full force for all purposes and for all material times when the alleged offence was committed. Apex Court held clause (l) of Section 2 of the Act 2000 provides that âjuvenile in conflict with lawâ means a âjuvenileâ who is alleged to have committed an offence and has not completed eighteenth year of age as on the date of the commission of such offence. Section 20also enables the Court to consider and determine the juvenility of a person even after conviction by the regular court and also empowers the Court, while maintaining the conviction to set aside the sentence imposed and forward the case to the J.J. Board concerned for passing sentence in accordance with the provisions of the 2000 Act.

Apex Court in

Mohan Mali and Another v. State of Madhya Pradesh, (2010) 6 SCC 669

has again considered the scope of Section 7A of the Act, wherein plea of juvenility was raised before Apex Court by the convict undergoing sentence. The appellant therein was convicted under sections 302/34, 326/34 and 324/34 IPC and was sentenced to life imprisonment and had already undergone 9 years of imprisonment. In that case a copy of the birth certificate issued by the Chief Registrar (Birth and Death) Municipal Corporation, Dhar u/s 12 of the Birth and Death Registration Act 1969 maintained by the Corporation was produced. Apex Court noticed that as per that certificate the date of birth of the accused was 12.11.1976. After due verification, it was confirmed by the State of Madhya Pradesh that he was a juvenile on the date of commission of the offence and had already undergone more than the maximum sentence provided under Section 15of the 2000 Act by applying Rule 98 of the 2007 Rules read with Section 15 and 64 of the 2000 Act. The accused was ordered to be released forthwith.

In

Jabar Singh v. Dinesh and Another, (2010) 3 SCC 757

Apex Court while examining the scope of Section 7A of the Act and Rule 12 of the 2007 Rules and Section 35 of the Indian Evidence Act took the view that the trial court had the authority to make an enquiry and take necessary evidence to determine the age. Holding that the High Court was not justified in exercise of its revisional jurisdiction to upset the finding of the trial court, remitted the matter to the trial court for trial of the accused in accordance with law treating him to be not a juvenile at the time of commission of the alleged offence. Apex Court noticed that the trial court had passed the order rejecting the claim of juvenility of respondent No.1 therein on 14.02.2006, the Rules, including Rule 12 laying down the procedure to be followed in determination of the age of a juvenile in conflict with law, had not come into force. Apex Court opined that the trial court was not required to follow the procedure laid down in Section 7A of the Act or Rule 12 of the Rules and therefore in the absence of any statutory provision laying down the procedure to be followed in determining a claim of juvenility raised before it, the Court had to decide the claim of juvenility on the materials or evidence brought on record by the parties and section 35 of the Evidence Act.

In

Anil Agarwal and Another v. State of West Bengal, (2011) 2 SCALE 429

Apex Court while examining the claim of juvenility made at a belated stage took the view that the appellants were minor at the time of the alleged offence and hence should not be tried along with the adult co-accused. The trial court dismissed the appellantâs application as not maintainable as it had been filed at a belated stage. The High Court, in revision, while holding that the application had been made belatedly, granted liberty to appellants to raise their plea of juvenility and to establish the same before the Sessions Judge at the stage of the examination under section 313 Cr.P.C.

Reversing the finding recorded by the High Court, Apex Court took the view that Section 7A of the Act, as it now reads, gives right to any accused to raise the question of juvenility at any point of time and if such an issue is raised, the Court is under an obligation to make an inquiry and deal with that claim. The court held Section 7A has to be read along with Rule 12 of the 2007 Rules. Apex Court, therefore, set aside the order of the High Court and directed the trial court to first examine the question of juvenility and in the event, the trial court comes to a finding that the appellants were minor at the time of commission of the offence, they be produced before the J.J. Board for considering their cases in accordance with the provisions of the 2000 Act.

We may in the light of the judgments referred to herein before and the principles laid down therein while examining the scope of Section 7 A of the Act, Rule 12 of the 2007 Rules and Section 49 of the Act examine the scope and ambit of inquiry expected of a court, the J.J. Board and the Committee while dealing with a claim of juvenility.

Section 7A, obliges the court only to make an inquiry, not an investigation or a trial, an inquiry not under the Code of Criminal Procedure, but under the J.J. Act. Statute requires the Court or the Board only to make an âinquiryâ and in what manner that inquiry has to be conducted is provided in JJ Rules, 2007. The expressions used in Section 7A and Rule 12 are of considerable importance and a reference to them is necessary to understand the true scope and content of those provisions. Section 7A has used the expression âcourt shall make an inquiryâ, âtake such evidence as may be necessaryâ and âbut not an affidavitâ. The Court or the Board can accept as evidence something more than an affidavit i.e. the Court or the Board can accept documents, certificates etc. as evidence need not be oral evidence.

Rule 12 which has to be read along with Section 7A has also used certain expressions which are also to be borne in mind at the point of time when enquiry of juvenility is underway. Rule 12(2) uses the expression âprima facieâ and âon the basis of physical appearanceâ or âdocuments, if availableâ. Rule 12(3) uses the expression âby seeking evidence by obtainingâ. These expressions in our view re-assert the fact that what is contemplated in Section 7A and Rule 12 is only an inquiry.

Further, the age determination inquiry has to be completed and age be determined within thirty days from the date of making the application; which is also an indication of the manner in which the inquiry has to be conducted and completed. The word âinquiryâ has not been defined under the J.J. Act, but Section 2(y) of the J.J. Act says that all words and expressions used and not defined in the J.J. Act but defined in the Code of Criminal Procedure, 1973 (2 of 1974), shall have the meanings respectively assigned to them in that Code.

âInquiryâ as defined in Section 2(g), Cr.P.C. reads as follows:

âInquiryâ means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.

The word âenquiryâ is not defined under the Code of Criminal Procedure which is an act of asking for information and also consideration of some evidence, may be documentary.

âInvestigationâ as defined in section 2(h), Cr.P.C. reads as follows:

âInvestigationâ includes all the proceedings under this code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorized by a Magistrate in this behalf.

The expressions âtrialâ has not been defined in the Code of Criminal Procedure but must be understood in the light of the expressions âinquiryâ or âinvestigationâ as contained in sections 2(g) and 2(h) of the Code of Criminal Procedure.â

The expression âtrialâ has been generally understood as the examination by court of issues of fact and law in a case for the purpose of rendering the judgment relating some offences committed. We find in very many cases that the Court /the J.J. Board while determining the claim of juvenility forget that what they are expected to do is not to conduct an inquiry under Section 2(g)of the Code of Criminal Procedure, but an inquiry under the J.J. Act, following the procedure laid under Rule 12 and not following the procedure laid down under the Code.

Consequently, the procedure to be followed under the J.J. Act in conducting an inquiry is the procedure laid down in that statute itself i.e. Rule 12 of the 2007 Rules, when the claim of juvenility is raised before the court exercising powers under section 7A of the Act.

âAge determination inquiryâ contemplated under section 7A of the Act r/w Rule 12 of the 2007 Rules enables the court to seek evidence and in that process, the court can obtain the matriculation or equivalent certificates, if available. Only in the absence of any matriculation or equivalent certificates, the court need obtain the date of birth certificate from the school first attended other than a play school. Only in the absence of matriculation or equivalent certificate or the date of birth certificate from the school first attended, the court need obtain the birth certificate given by a corporation or a municipal authority or a panchayat (not an affidavit but certificates or documents). The question of obtaining medical opinion from a duly constituted Medical Board arises only if the above mentioned documents are unavailable. In case exact assessment of the age cannot be done, then the court, for reasons to be recorded, may, if considered necessary, give the benefit to the child or juvenile by considering his or her age on lower side within the margin of one year.

Once the court, following the above mentioned procedure, passes an order; that order shall be the conclusive proof of the age as regards such child or juvenile in conflict with law. It has been made clear in subsection (5) of Rule 12 that no further inquiry shall be conducted by the court or the Board after examining and obtaining the certificate or any other documentary proof after referring to sub-rule (3) of the Rule 12. Further, Section 49 of the J.J. Act also draws a presumption of the age of the Juvenility on its determination.

On these parameters the issue that has been raised is to be looked into.

Under the The Juvenile Justice (Care and Protection of Children) Act, 2000, prior to insertion ofSection 7-A, claim of juvenility was required to be decided on the parameters of the provisions as are contained under The Juvenile Justice (Care and Protection of Children) Act, 2000 read with The Uttar Pradesh Juvenile Justice (Care and Protection of Children) Rules, 2004 and on the adjudication being made on the aforementioned parameters, if decision was done by the Board, then appeal was to be filed under Section 52 of The Juvenile Justice (Care and Protection of Children) Act, 2000 that gives right to any person aggrieved against the order made by Competent Authority under the said Act to prefer an appeal to the Court of Sessions. The High Court has been conferred with revisional power under Section 53 by providing that the High Court may at any point of time either of its own motion or on an application received in this behalf, call for the record of any proceeding in which any competent authority or Court of Session has passed an order for the purpose of satisfying itself as to the legality or propriety of any such order and may pass such order in relation thereto as it thinks fit.

Thus in proceedings so undertaken under The Juvenile Justice (Care and Protection of Children) Act, 2000, where the issue of juvenility is required to be answered after introduction of Section 7-A of J.J. Act such an issue of juvenility has to be answered strictly in consonance with the provisions as contained under Rule 12 of 2007 Rules.

Sub-rule (5) of Rules 12 talks of cases where further enquiry or otherwise is required, therein the Court or the Board, after examining and obtaining the certificate or any other documentary proof referred to in sub-rule (3) of Rule 12, is not empowered to make any further enquiry. Sub-rule 6 of Rule 12 clearly provides that the provision contained in this Rule shall also apply to those disposed off cases, where the status of juvenility has not been determined in accordance with the provisions contained in sub-rule (3) and the Act, requiring dispensation of the sentence under the Act for passing appropriate order in the interest of the juvenile in conflict with law.

The scheme of the Act would thus clearly reflect that once Section 7-A has been introduced under The Juvenile Justice (Care and Protection of Children) Act, 2000, thereafter in all the matter that come up before the Court therein either on application moved by the delinquent or on suo moto basis, the Courts are obligated to make an inquiry under the provisions that are provided under Rule 12 of 2007 Rules. All matters that have been decided not on the parameters of the The Juvenile Justice (Care and Protection of Children) Act, 2000 and The Juvenile Justice (Care and Protection of Children) Rules, 2007 are open to further inquiry to be conducted by the Court or the Board after examining and obtaining certificate referred to sub-rule 3 of Rule 12.

An adjudication of juvenility cannot be permitted to be accepted as final until and unless it is demonstrated before the Court that the juvenility in question has been determined on the parameters as are provided for in sub-rule 3 of Rule 12 of The Juvenile Justice (Care and Protection of Children) Rules, 2007.

The inevitable conclusion would be that where proceedings have been undertaken to make declaration of juvenile before the Board/Court in consonance with the provisions as contained under 2007 Rules and against the said decision, appeal and revision has been preferred and same has attained finality, then the said proceeding has to be accepted as final but in all other cases wherein the procedure that is prescribed for determination of age under 2007 Rules has not been undertaken, then the orders passed, determining the juvenility on the parameters of the earlier provisions, are not binding and will not have any binding effect and such an issue can be taken up in appeal at the point of time when such an issue is raised and in case, the Appellate Court finds that the determination in question is not at all in accordance with the provisions under Sub-Rule 3 of Rule 12 of the Act, then the said finding has to be ignored and the Appellate Forum is fully competent to either get further inquiry conducted on its own level on the parameters as are provided in sub-rule 3 of Rule 12. This particular opinion would subserve the cause of justice, inasmuch as, the aim and object of The Juvenile Justice (Care and Protection of Children) Act, 2000 is to extend the benefit to a juvenile.

Accordingly, the reference in question is answered as follows:

Issue no.I

âWhether the right of a juvenile to raise the issue of juvenility can be denied, by dismissing a writ petition as infructuous and then permitting him to raise the issue in a criminal appeal when the same issue had been raised before the Juvenile Justice Board and an appeal had been decided in accordance with Section 52 of the 2000 Act as in the present case, on applying the doctrine of finality?â

The right of a juvenile to raise the issue of juvenility cannot be denied by dismissing the Writ Petition as infructuous and in case Writ Petition in question has been filed though wrongly, the issue can be raised in Criminal Appeal even though the same has been raised before the Juvenile Justice Board and appeal has been decided under Section 52 of the 2000 Act once it is demonstrated before the Court that the issue of juvenility has not been answered on the parameters of Sub-Rule 3 of Rule 12 of the 2007 Rules.

Issue no.II

âWhether the law laid down by prescribing a procedure of allowing the question to be raised in a criminal appeal as an alternate substitute through a miscellaneous application under the judgment dated 13.10.2014 by the learned Single Judge is correct or not?â

Once the issue of juvenility has not been decided on the parameters of provisions as are contained under Sub-Rule 3 of Rule 12 of 2007 Rules, then such an issue can be examined by the Competent Criminal Court either on its own and even on a miscellaneous application being moved.

Issue no.III

âWhether in view of the law laid down by the Apex Court particularly in the case of Abuzar Hossain @ Gulam Hossain (supra) and Abdul Razzaq Vs. State of U.P. (supra), the issue presently raised, would also stand covered by the ratio and the observations made therein or not ?â

The law laid down by the Apex Court in the case of Abuzar Hossain @ Gulam Hossain (supra) and Abdul Razzaq Vs. State of U.P. (supra) would also cover the issue presently raised.

The reference is accordingly answered. The Appeal shall now be placed before the appropriate Bench according to roster for disposal in light of this judgement.

1. The petitioners by way of present petitions have approached the Court for quashing the complaint being Criminal Case No. 52 of 2002 pending before the learned Chief Judicial Magistrate, Jamnagar as also the order dated 10.01.2003 whereby upon said complaint, process came to be issued.

2. The background of facts leading to filing of the petition are that original accused no. 1 in the complaint was engaged in the business of selling of clothes and to facilitate the customers, utilized sweetened carbonated water ( Leher â Miranda) 500 ml packed bottles. It was alleged in the complaint that original accused nos. 2 to 4 are the partners of original accused no. 1 whereas accused no. 5 is the seller of the impugned packed bottles of sweetened carbonated water (LeherÂ­ Miranda) 500 ml. The respondent no. 2 had filed the complaint by alleging that the accused persons have utilized sweetened carbonated water ( LeherÂ­Miranda) 500 ml and by selling the said articles being not satisfied with the standard prescribed under the Prevention of Food Adulteration Act and Rules. On 05.09.2002 for the purpose of analysis under the provisions of

Prevention of Food Adulteration Act, 1954

( for short âthe Actâ) sent to the public analyst and on 30.09.2002, the public analyst reported that sample collected which is examined did not confirm to the standards of the Act and the Rules and on the basis of such report of public analyst, a complaint came to be filed against all the accused persons which complaint is questioned by way of present petition. So far as present petition is concerned, it is brought by the original accused no. 6 Pepsico Indian Holdings Pvt. Ltd. and accused no. 7 being the nominee of the company has questioned the legality of the complaint on the premise mentioned in the petition.

3. Before dealing with the case in detail, a fact is required to be noticed that this very complaint came to be brought before this Court in the form of Special Criminal Application No. 319 of 2003 for seeking quashing of the same and the Honâble Court vide order dated 02.12.2012 was pleased to allow the petition with exemplary cost quantified to Rs. 10000/Â­. The said petition was brought by other coÂ­ accused namely Digjam Retail Show Room Shoppers Paradise. The decision delivered by this Court is annexed to the petition compilation at page 52 as Annexure âBâ.

4. Now reverting back to the facts of the present case, it is contended by the petitioners that the allegations leveled in the complaint do not disclose any offence much less an offence punishable under Section 7(i) read with Section 16(1) (a)(i) of the Act of 1954. It is further contended in the petition that the complaint is not filed under Section 17 of the Act and there is no charge levelled specific against the petitioner company and its nominee. The learned Magistrate ought to have appreciated that there must be a separate charge against the petitioner company as required under Section 17 of the Act and therefore, on the basis of said complaint against the petitioner it tantamount to be an abuse of process of law. It was also contended that report of public analyst has failed to state that sample is adulterated. It was also contended that the complaint in question is inherently improbable on the basis of which, no prudent person can reach to the conclusion that there is sufficient ground for proceeding against the petitioners under Section 7(i) read with Section 16(1)(a)(i) of the Act. It was also contended that the petitioner company is a reputed company is not at all require for commission of crime and the complaint in question is filed with a manifestly malafide, based upon this and other contentions, the petition was brought before this Court seeking quashment of the complaint which was registered before the learned Magistrate as Criminal Case No. 52 of 2002. This Court on 14.12.2012 was pleased to admit the petition and accordingly granted an adÂ­interim relief in terms of para 7 (b) and later on, the said interim relief is continued all through out and it has now come up for final disposal.

5. It appears from the record that on 22.04.2016, a mention was made by the learned counsel for the petitioner that there some cognate matter in form of Special Criminal Application No. 3509 of 2012 is pending and therefore, this petition is ordered to be heard along with the said cognate matter.

6. Learned counsel for the petitioner has brought attention of the Court and conveyed that the facts are almost similar except the date and criminal case number and therefore, by treating the present Special Criminal Application No. 3508 of 2012 as a lead matter by a common judgement and order, both the petitions are to be dealt with and to be disposed of on the following line.

7. A bare perusal of number of complaints filed by respondent no. 2 indicates that basically the complaint is filed under Section 7(i) and by violating that, it is alleged that offence under Section 16(1)(a)(i) of the Act has been committed and based upon this complaint, the learned Magistrate has issued summons to the petitioners. As stated above, original accused no. 1 to 4 who were joined in the Criminal Case referred to above have approached this Court by way of Special Criminal Application No. 319 of 2003 as stated above wherein after hearing all the parties to the petition, this Honâble Court has specifically come to the conclusion that arraigning all the persons as accused who were infact the consumers of Mirinda bottle are unnecessarily dragged in the prosecution and therefore, by examining the complaint from that angle, the petition came to be disposed of and allowed. A reference is required to be made of the relevant paragraph of the said order hereunder:

â4. Heard Shri Khambolja, learned advocate appearing on behalf of the petitioners and Shri Satyam Chhaya, learned advocate appearing on behalf of the original complainant. This Court has also considered the documents on record as well as the impugned Complaints, which cannot be sustained for a moment so far as the petitioners are concerned. It is required to be noted that as such the petitioners were the consumer of Mirinda bottle and in fact they made the Complaint with respect to adulteration in the Mirinda bottle and in fact they were the complainant but still for whatsoever reason they are arraigned as an accused. By no stretch of imagination it can be said that the petitioners were the accused under the provisions of the Prevention of Food Adulteration Act. This Court fails to appreciate how the complainant and/or consumer who made the grievance with respect to adulteration can be arraigned as an accused. The learned advocate appearing on behalf of the original complainant is also not in a position to satisfy the Court how the petitioners can be arraigned as an accused for the offence under the provisions of the Prevention of Food Adulteration Act. It appears that arraigning the petitioners herein as accused, who were in fact the consumer of Mirinda bottle and even the complainant also demonstrates the nonÂ­ application of mind by the sanctioning authority and the original complainantÂ­concerned Food Inspector of A.M.C. Even the learned Magistrate has also erred in taking cognizance of the offence/complaint against the petitioners and has mechanically issued the summons/process against the petitioners. Under the circumstances, this is a fit case to exercise the powers under Section 482 of the Code of Criminal Procedure and to quash and set aside the impugned Complaints qua the applicants.

5. In view of the above, the present application succeeds and the impugned Complaints, being Criminal Case No. 155/2002 and 156/2002 pending in the Court of learned Metropolitan Magistrate, Ahmedabad filed by the Food Inspector, Ahmedabad Municipal Corporation are hereby quashed and set aside so far as the petitionersÂ­original accused nos. 1 to 4 are concerned. However, the same shall be without prejudice to the rights and contentions of the Food Inspector, Ahmedabad Municipal Corporation and the prosecution against other accused persons, which shall be considered by the concerned Magistrate in accordance with law and on its on merits at the earliest.

6. With this, the present petition is allowed with exemplary cost, which is quantified at Rs. 10,000/Â­, which shall be initially paid by Ahmedabad Municipal Corporation. However, it will be open for Ahmedabad Municipal Corporation to recover the same from the concerned Food InspectorÂ­original complainant after following the due procedure as required. The aforesaid amount of Rs. 10,000/Â­ shall be deposited with the Registry of this Court within a period of four weeks from today and on such deposit, Registry is directed to transmit the same to the Gujarat High Court Legal Services Committee. Rule is made absolute to the aforesaid extent.â

8. Learned senior counsel appearing for the petitioner Shri S.V. Raju has contended that the complaint is nothing but a clear example of abuse of process of law and therefore, contended that in any circumstance, the Court should not encourage such an attempt. While contending, the learned counsel has drawn the attention to the notice dated 26.07.2002 attached to the petition wherein it has been stated in paragraph no. 4 of the said complaint that the Mirinda bottle 500ml was purchased vide order dated 26.06.2002 vide bill no. 8414. In the said notice, it was informed that bottle was found to be of inferior of quality and request for replacement was refused. It appears that notice came to be issued with a demand of Rs. 3 lacs by way of damage sustained failing which, appropriate legal action either civil or criminal proceedings would be initiated and by drawing attention to this notice, the learned counsel for the petitioner stated that this is nothing but an illÂ­motive to excavate something from the petitioner which tantamounts to bea sheer abuse of process of law. The learned counsel has further drawn an attention of the Court to the reply which has been given refuting to the allegations and when the said reply was given by the petitioner on 31.07.2002, on 06.08.2002 Mr. Sureshbhai Chimanlal Shah, partner of accused no. 1 has written a letter to Ahmedabad Municipal Corporation by asserting that the petitioner had committed an offence punishable under the provisions of the Prevention of Food Adulteration Act. The background of this circumstance appears to have led respondent no.2 to file a complaint in a routine manner without observing the mandatory requirement of the statute and by contending this, the counsel for the petitioner requested the Court to quash the said complaint which is nothing but an abuse of process of law.

9. It has also been brought to the notice of Court that public analyst report is dated 30.09.2002 and based upon it, the complaint came to be filed. It was contended by the counsel for the petitioner that the best before use period of substance in question is three months and without visualizing this, straightaway complaint came to be filed by respondent no.2 in an irresponsible manner and therefore, filing of the complaint at the dictum of the somebody is nothing but the abuse of process of law.

10. The learned counsel for the petitioner further submitted that the date of expiry of impugned bottle is three months and therefore, valuable right of reÂ­examination by the Central Food Laboratory has been lost on account of malafide action on the part of the respondent Food Inspector who caused delay. It was also contended that the sample which has been collected is also not as per the mandatory procedure prescribed under the Act and therefore, such fatal irregularity which has been committed would go to the route and therefore, the complaint deserves to be quashed. It was also contended by counsel for the petitioner that in absence of any laboratory being certified for analysis under Section 23(1Â­A) (ee) and in absence of prescribed and valid method of analysis under Section 23(1Â­A) (hh) of the Act on the date of alleged offence, the prosecution could not have been launched on the basis of public analyst report and keeping this in mind, the counsel submitted that sanction to prosecute being granted is also bad in law, suffers from vice of non application of mind and therefore, based upon it, the case in question deserves to be quashed. It was also contended by the counsel that sanctioning authority before granting sanction ought to have appreciated that the sample in question was under the control of original accused no. 1 to 4 for almost period of more than two months and it is only pursuant to their pressure, sanction to prosecute was granted without application of mind. It was also brought to the notice that analysis report on record does not indicate that the seized soft drink was injuries to health or causing prejudice to the purchaser and therefore, in absence of such report of said nature, the complaint could not have been entertained and therefore, issuance of process dated 10.01.2003 is also required to be quashed.

11. The learned senior counsel Mr. SV Raju for the petitioner has mainly further submitted that complaint could have been filed by the purchasers and Food Inspector has no right to file the complaint in such an irregular manner. It was also contended that there is a clear violation of a right available to the petitioner under Section 13(2) of the Act and that being so the complaint is required to be quashed in the interest of justice. It was also contended that complaint is filed on 13.12.2002 and the notice as referred to above indicates that bottle came to be purchased on 26.06.2002 and therefore, the complaint being generated after almost a period of more than six months, the same ought not to have been entertained and no summons could have been issued. The counsel submitted that even the first analysis appears to be after almost a period of three months essentially after the best before use period and therefore, every step after âbest before use period â would be of no avail and complaint could not have been filed. This has clearly violated statutory provision contained under Section 13(2) of the Act conferred upon petitioners. The learned counsel has drawn attention of Rule 32 (I) as also Rule 32(f) and contended that the complaint is nothing but a sheer abuse of process of law. It was also contended that report of analyst merely indicates âfungusâ which on account of several reasons can be developed and report of analysis is not indicating any remote circumstance reaching to the said conclusion that any offence is committed and therefore, the counsel submitted that the complaint in question is nothing but clear abuse of process of law.

12. The learned counsel has further submitted that Food Inspectors are entrusted with the powers under Section 10 of the Act and has contended that the manner and method of collecting samples which is stipulated under Section 11 of the Act is also not observed and, therefore, the counsel submitted that the entire procedure which has been adopted leading to filing of the complaint is exÂ­facie erroneous and impermissible and therefore, the complaint based upon it deserves to be quashed.

13. The learned counsel has drawn attention to various statutory provisions contained under the Act. Sections 10, 11, 12 and 20 and has contended that there is a complete departure from the mandatory procedure established by law by filing complaint against the petitioner in this particular manner and therefore, learned counsel submitted that this is nothing but sheer abuse of process of law and complaint in question is required to be quashed in the interest of justice.

14. Learned counsel for the petitioner has relied upon various decisions in case of

Gupta Chemicals Private Limited and others v. State of Rajasthan and another reported in 2010 (7) SCC 735

and two decisions of this Honâble Court delivered in Special Criminal Application No. 539 of 2011 dated 27.04.2012 as well as Criminal Misc. Application No. 10732 of 2010 dated 22.10.2010 and various other decisions to which, the Court would like to deal with later on at an appropriate stage and by citing these citations, the counsel for the petitioner submitted that complaint is nothing but a sheer abuse of process of law requires to be quashed in the interest of justice. No other submissions are made.

15. To oppose this petition, the learned advocate Mrs. VD Nanavaty appearing on behalf of the respondent No. 2Â­ company has contended that the petition is brought at a much belated stage by the petitioner and therefore, no interference be made in exercise of inherent jurisdiction. The learned advocate has drawn attention to the averments contained in the petition memo and has conveyed that the contentions which have been raised now before the Court are not reflected in pleadings of the petition and therefore, in absence of any pleadings at the initial stage, while bringing the petition, it is not permissible for the counsel of the petitioner to further improve the case. The learned advocate further contended that there is an unexplained delay in approaching the Court by way of present petition. The sample was collected in the year 2002 and the petition is filed after almost a period of 10 years in 2012 with no explanation of delay and therefore, the learned advocate submitted not to interfere in exercise of jurisdiction.

16. It was also contended that sample which was collected was of glass bottle and the period of âbest before useâ is six months and therefore, there is no irregularity of any nature in either collecting the sample or sending the sample and the learned advocate has stated that the report of public analyst is to be treated as final and therefore, the prosecution cannot be throttled at initial stage itself. So far the specific contention of section 13(2) of the Act is concerned, she has submitted that the petitioners themselves have not availed said opportunity and therefore, now they cannot be allowed to agitate as they have waived their right contained under Section 13(2) of the Act.

17. The learned counsel by referring to the contents of affidavitÂ­inÂ­ reply filed by respondent no.2 has stated that proper procedure has been complied with and the prosecution been filed after getting proper sanction from the authority. The counsel further submitted that there are disputed questions of facts which may not be made a subject matter of exercise of power under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution of India and therefore, counsel requested not to interfere with the petition and prosecution be allowed to proceed further with the case. The learned counsel has drawn attention of the Court to various decisions and stated that this is not the case in which, the inherent jurisdiction is allowed to exercised at the instance of the petitioners. The learned counsel has placed reliance on the decision in case of

[iv] Ajay Modi v. State of GujaratÂ­ 2015 (0) AIJELÂ­HC 233693

and several other decisions to which, this Court would like to deal with it at an appropriate stage, but to summarize, the contentions of the learned advocate in substance is that power under Section 482 of the Code of Criminal Procedure and jurisdiction under Article 226 of the Constitution of India may not be exercised in the background of this peculiar facts and circumstance and by referring to affidavitÂ­-in-Â­reply has opposed the petition and requested the Court not to grant the relief and to dismiss the petition.

18. Having heard learned counsel appearing on behalf of the respective parties and before dealing with the respective contentions of both the sides, few statutory provisions are worth to be taken note of. Under Section 9 of the Act, Food Inspector to be nominated by way of Notification and Sub section (1) of Section 10 of the Act prescribes powers of Food Inspector to take samples of any article of Food from any persons selling such article, any person who is in course of conveying or delivering or preparing to deliver such article to a purchaser or consignee; a consignee after delivery of any such article to him and to send such sample for analysis to the public analyst for the local area within which such sample has been taken. While entrusting the said power of collecting sample the Food Inspectors are authorized to enter and inspect any place where the article is either manufactured or sold for sale or stored for manufacture of other article for food under Sib Section 4 of Section 10 of the Act, the power of seizure and to keep in the safe custody is also entrusted and various other powers are also invested in Food Inspector to carry out the object for which the act is brought. Section 11 of the Act prescribed the procedure to be followed by the Food Inspector who takes the sample for food analysis and the specific procedure is prescribed.

19. Section 12 of the Act permits the purchase of any article of food other than the food inspector from having such article analyzed by the public analyst on payment of such fees as may be prescribed and from receiving from the public analyst a report of his analysis.

20. Section 13 of the Act is very relevant for the purpose of consideration of this Court. Section 13 is reproduced hereinafter.

13. Report of public analyst :Â­ 2[(1) The public analyst shall deliver, in such form as may be prescribed, a report to the Local (Health) Authority of the result of the analysis of any article of food submitted to him for analysis.

(2) On receipt of the report of the result of the analysis under subÂ­section (1) to the effect that the article of food is adulterated, the Local (Health) Authority shall, after the institution of prosecution against the person from whom the sample of the article of food was taken and the person, if any, whose name, address and particulars have been disclosed under section 14A, forward, in such manner as may be prescribed, a copy of the report of the result of the analysis to such person or persons, as the case may be, informing such person or persons that if it is so desired, either or both of them may make an application to the court within a period of ten days from the date of receipt of the copy of the report to get the sample of the article of food kept by the Local (Health) Authority analysed by the Central Food Laboratory.

21. Section 14 of the Act deals with an issue of warranty to be given by manufacturers, distributors and dealers and Section 16 of the Act is the provision whereby penalties have been prescribed for commission of offence the Act. Section 17 of the Act deals with the offence by the companies and Section 20 of the Act deals with cognizance and trial of offences which are initiated by the authority. A specific power is conferred upon the Court under Section 20(A) of the Act to implead manufacturer and other related persons and Section 23 of the Act invested the powers to frame the rules. The relevant clause of Section 23 of the Act are also worth to be taken note of is issue issue entangled in the proceedings about it and therefore, the same is reproduced hereinafter.

â23. Power of the Central Government to make rules:Â­ The Central Government may, after consultation with the Committee and after previous publication by notification in the Official Gazette, make rules to carry out the provisions of this Act.

Provided that consultation with the Committee may be dispensed with if the Central Government is of the opinion that circumstances have arisen which render it necessary to make rules without such consultation, but, in such a case, the Committee shall be consulted within six months of the making of the rules and the Central Government shall take into consideration any suggestions which the Committee may make in relation to the amendment of the said rules.]

xxxxxxxxxxx

1[(ee)defining the laboratories where samples of article of food or adulterants may be analysed by public analysts under this Act;]

xxxxx xxxxxxx

1[(hh) defining the methods of analysis;] Part II is dealing with the functions of Central Food Laboratory in the Prevention of Food Adulteration Rules, 1955. Rule 4 ((0 of the said Rules reads as under:

(9) The manuals of method of analysis brought out by Ministry of Health and Family Welfare shall be adopted for analyzing the samples of food articles. However, in case the method for analyzing any parameter is not available in these manuals, the method of analysis prescribed in the AOAC/ISO/Personâs/ JACOB/IUPAC/Food Chemicals Codex/BIS/Woodmen/WintonÂ­ Winton/Joslyn shall be adopted. Further, in case of nonÂ­availability of method of analysis in these manuals, the method prescribed in other standard published literature or publication shall be adopted. 21.1 Rule 9 of the Rules deals with the duties of Food Inspector and Rule 9(A) of the Rules is again prescribing the schedule in which the sample to be sent for analysis. Part V of the Rules deals with sealing, fastening and despatch of samples wherein Rule 14 as prescribed the manner and method of sending sample for analysis. Rule 15 postulates the bottles or container to be labelled and addressed. Rule 16 of the Rules prescribes the manner of packing and sealing the samples. Rule 17 of the Rules prescribed the manner of despatching containers of samples. Rule 22 of the Rules deals with quantity of sample sent to be considered as sufficient. Rule 32 of the Rules 32 deals with a prepackeged food to carry a label. Rule 32(f) and Rule 32(g) reproduced as under:

(f) Date of manufacture or packingÂ­ The date, month and year in which the commodity is manufactured, packed or preÂ­packed, shall be given on the label:

Provided that the month and the year of manufacture, packing or preÂ­packing shall be given if the âBest before Dateâ of the product is more than three months;

Provided further that in case any package contains commodity which has a short shelf life of less than three months, the date, month and year in which the commodity is manufactured or prepared or prepacked shall be mentioned on the label.

(g) Use by date/recommended last consumption date/expiry date shall be given,Â­

22. Now in the backdrop of aforesaid statutory provisions the contentions of both sides are to be dealt with hereunder. The learned counsels to support their contentions referred to above relied upon some of the decisions of which some relevant decisions are dealt with in background hereunder

23. The counsel for the petitioner has relied upon the decision in case of

wherein the Bombay High Court in consideration of the effect of provision contained under Section 13(2) of the Act held that violation thereof would be fatal to the prosecution in that particular background of facts, the High Court of Bombay Nagpur Bench had quashed the complaint. The counsel further relied upon another decision in case of

wherein also the counsel has drawn the attention that the Honâble Apex Court has dealt with Section 13(2) of the Act and also the effect of Section 16(1)(a)(i) of the Act and has held that deprivation of the option of Section 13(2) of the Act would be prejudicial and lead to serious flow and in the background of that fact, the Honâble Apex Court has quashed the proceedings and the learned counsel has conveyed that this decision has been delivered in case from this very Court. Yet in another decision reported in

wherein the Madhya Pradesh High Court vide its Indoor Bench has delivered the decision on the issue pertaining to violation of Section 13(2) of the Act and held that it causes a serious prejudice to the accused and thereby the complaint in respect to that case is quashed. The learned counsel for the petitioner further relied upon in another decision reported in

ITC Ltd & Others v.The State of Madhya Pradesh,2012 (2) FAC 441Â­

wherein also in similar background, the complaint when came to be filed after long lapse of date of expiry of sample, the Court quashed the proceedings. Similarly, in another decision pointed out in case of

Rameshwar Dayal v.State of U.P. reported in (1995) suppl.4 SCC 659

wherein the Honâble Apex Court while dealing with the provision of Section 13(2) of the Act has held that nonÂ­supply of report of public analyst to the accused is resulting in serious prejudice to him and in that particular case even the conviction came to be set aside. The counsel further relied upon the decision in case of

Saumindra Bhattacharya v.State of Bihar reported in (2010) 15 SCC 338

wherein also the Honâble Apex Court held that even assuming that some report of public analyst pun on record during pendency of complaint before this factor will not cure the definition of Section 20 of the Act and while coming to the conclusion the Apex Court has examined the vigour of Section 11 which postulates the procedure to be observed by the Food Inspector. Further in case of

while dealing with the statutory right of the accused, to get sample tested and analyzed by the Central Insecticide Laboratory, the Honâble Apex Court has considered the shelfÂ­life of the produce/article and has held that shelfÂ­life of the article is very relevant. The Honâble Apex Court has found in that case that valuable right of the accused for his defence is defeated and has conveyed that continuance of criminal prosecution would be nothing but futile exercise which may tantamount to be an abuse of process of Court.

wherein while dealing with the statutory right of the accused under Section 24 of the Insecticide Act 1968 to get the seized sample examining Central Insecticides Laboratory denial thereof or delay thereof was seriously taken into consideration and the Court held that under Section 482 of the Code of Criminal Procedure powers ought to have been exercised by the High Court. The same is the case that a decision delivered by the Apex Court in case of

wherein also relying upon the observations made, the counsel submitted that the proceedings on the case on hand are also stayed which can tantamount to be an abuse of process of Court. In another decision unreported decision delivered by this Court in Special Criminal Application No. 539 of 2011 dealing with the issue pertaining to shelfÂ­ life of an article, the Court has considered the effect of Section 13(2) of the Act in consideration of an issue of shelfÂ­life of a product and thereby Court has quashed the criminal complaint and by citing of this decision, the learned counsel for the petitioner has requested the Court to quash the proceedings which are questioned in the present petition. It was also pointed out that in yet another case

the Honâble Apex Court in the background of case found that sample was not sent to Forensic Laboratory in the absence of valid method of analysis being prescribed in the Laboratory since no examination was found, the Court quashed the proceedings and therefore, by citing this decision and taken the Court to the background of the facts of this case, a request is made to allow the petition and quash the criminal proceedings lodged by the complainant. No other submissions are made.

25. The learned counsel for the respondent has relied upon several decisions to withstand the contentions raised by the petitioner and stated not to exercise inherent jurisdiction contained under Section 482 of Code of Criminal Procedure as also extraordinary jurisdiction under Article 226 of the Constitution of India. The counsel submitted that this is not a case to exercise extraordinary jurisdiction.

26. The learned counsel for respondent has submitted the compilation while relying upon various decisions which are being narrated one by by herein is the first decision which has been relied upon by the counsel in case of

Tulsiram v.State of M.P. reported in 1985 SCC 299

wherein while dealing with Sections 11 and 13 of the Prevention of Food Adulteration Act, the Honâble Apex Court has examined the effect of Rule 9(A) of the Prevention of Food Adulteration Rule 1955. The Honâble Apex Court examined the effect of a word âimmediatelyâ contained in Rule 9(A) and has held that this immediately word conveys the sense of continuity rather than urgency and non compliance with said Rule 9(A) is not fatal. It was observed by the Apex Court that what must be done is to forward the report to person from whom sample was taken at the earliest so as to exercise the statutory right under Section 32(2) and then the Court observed that non compliance with Rule 9(A) is not fatal. In another decision in case of

again the said has come up for examination before the Honâble Apex Court wherein also similar view is taken and similar view is taken and the Honâble Court opined that word âimmediatelyâ conveys reasonable despatch and promptitude intending to convey sense of continuity rather than of urgency. The learned counsel yet in another case reported in case of

Nagpur Bench of the Bombay High Court has dealt with the issue related to Section 13(2) of the Act and has held that while considering the factor of sending statutory notice as contemplated by Section 13(2) of the Act the nature of product shall have to be taken into consideration and it cannot be assumed that any prejudice is caused to accused if the articles gets damage after the prescribed period. The said decision has also dealt with the word âbest beforeâ as defined under Rule 32(m) and has held that âbest beforeâ is that the period during which the product shall remain fully marketable and shall retain in specific qualities for which tacit or express claims have been made.

27. The learned counsel has further relied upon yet another decision of this Court in case of

Ajay Modi v.State of GujaratÂ­ 2015 (0) AIJELÂ­HC 233693

wherein the Honâble Court has stated that complaint is not required to be quashed and set aside on the ground that because of delay in filing the complaint, the accused would suffer great prejudice as sample must have become decomposed and/or deteriorated and/or would have become incapable of being analyzed mere allegation of prejudice would not be sufficient to quash the complaint that too in exercise of powers u/s 482 of the CrPC and therefore, while dealing with the Sections 7, 13(2) as also the Honâble Court has refrained from quashing the criminal proceedings. The said decision having been bearing in mind the present proceedings the relevant paragraphs worth to be taken note of. Hence, reproduced hereinafter.

â[5.0] Heard learned advocates appearing on behalf of the respective parties at length.

At the outset it is required to be noted that the present application has been preferred by the applicant herein original accused to quash and set aside the impugned criminal proceedings / criminal complaint for the offence punishable under the PFA Act, in exercise of powers under Section 482 of the CrPC. The impugned criminal proceedings/criminal complaint are requested to be quashed and set aside mainly on the ground that there is an inordinate delay in filing the complaint and therefore, the valuable right of the accused to get the sample tested by the Central Laboratory conferred under Section 13(2) of the PFA Act has been taken away and/or the same has been violated and/or the grave prejudice shall be caused to the applicant as because of the delay and by the passage of time the sample must have been deteriorated and/or decomposed. The impugned complaint is also requested to be quashed and set aside on the ground of limitation i.e. on the ground that the impugned complaint has been lodged/filed after a period of three years. Therefore, the short question which is posed for consideration of this Court is whether on the aforesaid ground the impugned criminal complaint for the offences under the PFA Act is required to be quashed and set aside in exercise of powers under Section 482 of the CrPC?â

[5.1] Now, so far as the first ground on which the impugned complaint is requested to be quashed and set aside i.e. delay in filing the complaint and the prejudice that may be caused to the accused and/or taking away the right of the accused to get the sample tested through Central Laboratory as conferred under Section 13(2) of the PFA Act is concerned, the submissions seems to be attractive but has no substance. At the outset it is required to be noted that as such no application has been submitted by the accused and/or any request is made by the accused before the learned Magistrate to send the sample to the Central Laboratory. Therefore, as such the accused has not exercised the option which is conferred under Section 13(2) of the PFA Act of getting the sample examined through the Central Laboratory. Therefore, the contention on behalf of the applicant that a valuable right of the applicant to get the sample tested through Central Laboratory has been taken away cannot be accepted.

[5.2] Now, so far as the contention on behalf of the applicant that because of the delay in filing the complaint i.e. in the present case of 11 years, the valuable right of the applicant to get the sample tested through Central Laboratory as conferred under Section 13(2) of the PFA Act has been taken away and/or has been violated and/or a great prejudice would be caused to the applicant, as because of such delay the sample might have become decomposed and/or deteriorated is concerned, the aforesaid are only on presumption and assumption. Unless and until any request is made to send the sample to the Central Laboratory, by exercising the option as conferred under Section 13(2) of the PFA Act and unless and until the sample is sent to the Central Laboratory and thereafter, after analysis it is opined by the Central Laboratory that as such the sample has deteriorated and/or decomposed, on such presumption and assumption that it must have been deteriorated and/or decomposed, the criminal proceedings cannot be quashed in exercise of powers under Section 482 of the CrPC and that too for the offences under the PFA Act. In the case ofAjit Prasad Ramakishan Singh(Supra), the Honble Supreme Court considering its earlier judgment in the case ofSukhmal Gupta(Supra) has specifically observed and held that it was wrong for Courts to decide, without any data, that the sample would decompose and become incapable of analysis and that no useful purpose would be served in sending the sample for analysis to the Director, when there was no evidence that the sample had so deteriorated at the time of service of summons as to be incapable of being analysed. It is further observed that in absence of evidence, that the sample has so deteriorated as to be incapable of analysis, such a presumption would not be justified.

[5.3] Identical question came to be considered by the Andhra Pradesh High Court in the case ofM/s. Hyderabad Beverages Private Limited(Supra) and in paras 70 to 73, 75, 76 to 78, the Andhra Pradesh High Court has observed and held as under:

70. In

Ajit Prasad Ramakishan Singh, 1972 Cri LJ 1026

the Supreme Court, following its earlier judgment in Sukhmal Gupta, held that it was wrong for Courts to decide, without any data, that the sample would decompose and become incapable of analysis and that no useful purpose would be served in sending the sample for analysis to the Director, when there was no evidence that the sample had so deteriorated at the time of service of summons as to be incapable of being analysed. In the absence of evidence, that the sample has so deteriorated as to be incapable of analysis, such a presumption would not be justified.

71. An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food laboratory and not for this Court, in proceedings under Section 482, Cr.P.C. to presume that every case of delay in furnishing a copy of the Public Analystâs report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused.

72. As held by the Apex Court in

Ajit Prasad Ramkishan Singh, 1972 Cri LJ 1026

Sukhmal Gupta, Charanji Lal, 1984 Cri LJ15

andT. V. Usmanand this Court in

G. S. Prasad, 2003 Cri LJ (NOC) 231

and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.

73. As held in

T. V. Usman, AIR 1994 SC 1818

there is no time limit prescribed for launching prosecution. It is relevant to note that a time limit is prescribed, under Section 9A of the P.F.A. Act, for sending the second sample for analysis to the Public Analyst, a time limit of 10 days was prescribed under Rule 9(j), prior to its omission with effect from 4Â­1Â­1977, for supplying a copy of the report of the public analyst, Rule 22 provides that the quantity of food to be sent for analysis must be as prescribed in the table to the rule and Rule 7(3) requires the Public Analyst to submit his report within 45 days. All these statutory provisions were held in

Tulsiram, 1984 Cri LJ 1731

T. V. Usman, AIR 1974 SC 1818

to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein time limit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without any thing more, is fatal to the prosecution.

75. Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused.

76. In

Dalchand, 1983 Cri LJ 448

the Supreme Court held thus :

ââ¦â¦.It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit. The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statuteâ¦â¦â¦â

(Emphasis supplied)

77. Since the eventual test is one of prejudice, which is to be established, on the facts and circumstances of each case, by way of evidence adduced before the learned Magistrate, it is not for this Court, under Section 482, Cr.P.C. to infer or presume that even in case of delay, say of a few days, beyond the shelf life of the product, and in the absence of reasonable explanation for the delay in furnishing a copy of the report of the Public Analyst, the accused is prejudiced and his right, under Section 13(2) of the P.F.A. Act and Section 16(2) of the Seeds Act, is violated.

78. In exercise of its jurisdiction under Section 482, Cr.P.C. this Court does not take upon itself the task of examining the evidence or to record an independent finding that the delay in furnishing a copy of the public analystâs report has resulted in prejudice to the accused. Whether the delay is insignificant or inordinate, whether the delay is attributable to lapses of the prosecution in making available a copy of the public analystâs report, whether on account of the delay in making the report available, the right of the accused under Section 13(2) of the P.F.A. Act or Section 16(2) of the Seeds Act has been rendered illusory as the sample sent to the Central Laboratory is found unfit for analysis due to decomposition by passage of time or for any other reason attributed to lapses on the part of the prosecution, whether inordinate delay in sending the sample for analysis has, by passage of time, rendered the sample âadulteratedâ are all matters to be examined by the learned Magistrate, in the facts and circumstances of each case, on the basis of the evidence adduced. Delay, by itself and without anything more, cannot form the basis for the High Court, in exercise of its jurisdiction under Section 482, Cr.P.C. to quash the criminal proceedings.â

[5.4] Identical question came to be considered by the learned Single Judge in the recent decision in the case ofPepsi Co. India Holdings Ltd. thro its Officer Vinay Mathur & Anr.(Supra) and after considering the aforesaid decision of the Andhra Pradesh High Court and after considering other decisions of the Honble Supreme Court as well as other High Courts on the issue, the learned Single Judge refused to quash and set aside the complaint for the offences punishable under the PFA Act which was requested to be quashed and set aside on the ground of delay in filing the complaint and which was requested to be quashed and set aside on the grounds on which the impugned criminal complaint is requested to be quashed and set aside.

[5.5] There cannot be any presumption that the sample must have been deteriorated and/or decomposed and/or would have become incapable of being analyzed. Whether delay, in furnishing the copy of the report of Public Analyst and/or delay in filing the complaint, has resulted in prejudice to the accused and whether the prosecution has furnished a satisfactory explanation for the delay, are all matter of evidence to be examined by the trial Court and not for this Court in proceedings under section 482 of the CrPC. As per the catena of decisions of the Honble Supreme Court as well as this Court, the power under Section 482 of the CrPC are to be exercised sparingly with circumspection and in rarest of rare cases. Such a power is not to be exercised to stifle legitimate prosecution. It is required to be noted that in the present case as such the Public Analyst, Food and Drugs, Vadodara had infact found the percentage of iodine in the sample/salt much less than the prescribed limit under the PFA Act. Therefore, the impugned complaint is not required to be quashed at this stage in exercise of powers under Section 482 of the CrPC solely on assumption and presumption that the sample might/must have been deteriorated and/or decomposed and/or incapable of being analyzed now.

[5.6] Similarly, the impugned complaint is not required to be quashed and set aside on the ground that because of the delay in filing the complaint, the accused would suffer great prejudice as the sample must have become decomposed and/or deteriorated and/or would have become incapable of being analyzed. The prejudice is not required to be pleaded only but actual prejudice if any caused is to be demonstrated and established. As observed hereinabove, mere allegation of prejudice would not be sufficient to quash the complaint that too in exercise of powers under Section 482 of the CrPC.

28. The learned counsel for the respondent has relied upon one another more decision delivered by this Court in case of

the Court had dealt with the issue related to âbest beforeâ use. The Court in the said decision has at length examined various aspects and issues raised almost similar which are raised here on case on hand and has considered and observed that mere delay in furnishing the report of public analyst by itself be not a ground that the accused has caused prejudice. Simply because the sample has not been sent to Central Laboratory. The Court has considered the various authorities while dealing with the relevant statutory provision coupled with the Rules pertaining to it and has not entertained the petition and since the observations are worth to be taken into consideration. The same are being reproduced hereinafter.

â22. In cases where the delay on the part of the prosecution had resulted in the sample, sent for analysis to the Central Food Laboratory, being rendered unfit for analysis, it would undoubtedly cause prejudice to the accused and would amount to denial of his valuable right under Section 13(2) of the Act. There could also be other cases where the delay on the part of the prosecution could be found to have caused prejudice. Whether or not delay in furnishing of the copy of the report of the public analyst has caused prejudice to the accused are matters, which can only be decided, on the basis of the evidence, by the trial Court, and not by this Court, in exercise of its inherent powers under Section 482 of the Code or writ jurisdiction under Article 226 of the Constitution.

23 In the present case, the Central Food Laboratory found the sample fit for analysis and after certifying the sample fit for analysis, it found the sample adulterated. Once there is a certificate of the Central Food Laboratory certifying that the sample was fit for analysis then the burden would shift on the accused to establish by leading cogent evidence that the sample had become unfit and the report of the Central Food Laboratory would have no evidentiary value. Whether a sample has, on expiry of its, âBest Before date or its shelf life, become unfit for analysis on account of its being decomposed, is a matter of evidence and not a matter of inference in the proceedings under Section 482 of the Cr.P.C. It is only when a sample is sent for analysis, can the Central Laboratory on examination certify whether or not the sample has been decomposed rendering it unfit for analysis.

24.. In

Charanji Lal v. State of Punjab, (1984) 1 SCC 329 : 1984 Cri LJ 15

the Supreme Court held thus :Â­ (Para 15 of Cri LJ)

ââ¦â¦â¦..Decomposition is not something which always takes place suddenly or immediately. It is a process which in some cases may be slow and in some cases quick. Decomposition cannot be noticed or ascertained by the Court when it inspects the part of the sample under subÂ­section (2Â­ B) of Section 13 to ascertain whether the mark and seal or fastening are intact and the signature or thumb impression, as the case may be, not tampered with, before despatching that part to the Central Food Laboratory. Even with the mark and seal intact, and the signature or thumb impression, as the case may be, not tampered with, the sample might have already decomposed or decomposing might have already commenced. Whether a sample has decomposed or not can only be ascertained when the sealed container is opened in the Central Food Laboratory for the purpose of analysisâ¦â¦â¦â¦.. (Emphasis supplied)â

samples of six packets of pan supari were sent for analysis to the Public Analyst, who opined that the sample contained Sacharin, an artificial sweetener, and was thus adulterated. Both the vendor and the manufacturer were acquitted by the Magistrate, on the ground that Rule 7(3) was violated inasmuch as the Local (Health) Authority had received the Form III report beyond 45 days. The learned Magistrate also held that Rule 9(a) was not properly complied with. On appeal the Kerala High Court, while confirming the acquittal of the manufacturer, convicted the vendor. The Kerala High Court held that Rule 7(3) was not mandatory and nonÂ­compliance thereof needed to be considered only if prejudice was established. Following the judgment of the Supreme Court in

Tulsiram, 1984 Cri LJ 1731

the Kerala High Court held that Rule 9(a) was also not mandatory, but was directory. On appeal, the Supreme Court held thus : (At Pp. 1821Â­22, para 14 of AIR)

âIn Rule 7(3) no doubt the expression âshallâ is used but it must be borne in mind that the Rule deals with stages prior to launching the prosecution and it is also clear that by the date of receipt of the report of the Public Analyst the case is not yet instituted in the Court and it is only on the basis of this report of the Public Analyst that the concerned authority has to take a decision whether to institute a prosecution or not.There is no time limit prescribed within which the prosecution has to be instituted and when there is no such limit prescribed then there is no valid reason for holding the period of 45 days as mandatory. Of course that does not mean that the Public Analyst can ignore the time limit prescribed under the Rules. He must in all cases try to comply with the time limit. But if there is some delay, in a given case, there is no reason to hold that the very report is void and on that basis to hold that even prosecution cannot be launched. May be, in a given case, if there is inordinate delay, the Court may not attach any value to the report but merely because the time limit is prescribed, it cannot be said that even a slight delay would render the report void or inadmissible in law. In this context it must be noted that Rule 7(3) is only a procedural provision meant to speed up the process of investigation on the basis of which the prosecution has to be launched. No doubt, subÂ­sec. (2) of S. 13 of the Act confers valuable right on the accused under which provision the accused can make an application to the Court within a period of 10 days from the receipt of copy of the report of Public Analyst to get the samples of food analysed in the Central Food Laboratory and in case the sample is found by the said Central Food Laboratory unfit for analysis due to decomposition by passage of time or for any other reason attributable to the lapses on the side of prosecution, that valuable right would stand denied. This would constitute prejudice to the accused entitling him to acquittal but mere delay as such will not per se be fatal to the prosecution case even in cases where the sample continues to remain fit for analysis in spite of the delay because the accused is in no way prejudiced on the merits of the case in respect of such delay. Therefore it must be shown that the delay has led to the denial of right conferred under Section 13 (2) and that depends on the facts of each case and violation of the time limit given in subÂ­rule (3) of Rule 7 by itself cannot be a ground for the prosecution case being thrown out.â

(Emphasis supplied).â

26. I may quote a very exhaustive decision rendered by the learned Single Judge of the Andhra Pradesh High Court on the subject in the case of

Ajit Prasad Ramakishan Singh, 1972 Cri LJ 1026

the Supreme Court, following its earlier judgment in Sukhmal Gupta, held that it was wrong for Courts to decide, without any data, that the sample would decompose and become incapable of analysis and that no useful purpose would be served in sending the sample for analysis to the Director, when there was no evidence that the sample had so deteriorated at the time of service of summons as to be incapable of being analysed. In the absence of evidence, that the sample has so deteriorated as to be incapable of analysis, such a presumption would not be justified.

71. An enquiry, as to whether the sample has decomposed, whether it is fit or unfit for analysis etc., is a statutory function required to be discharged by the Central Food laboratory and not for this Court, in proceedings under Section 482, Cr.P.C. to presume that every case of delay in furnishing a copy of the Public Analystâs report, beyond the shelf life of the product, would either result in the sample becoming decomposed or cause prejudice to the accused.

72. As held by the Apex Court in

Ajit Prasad Ramkishan Singh, 1972 Cri LJ 1026

Sukhmal Gupta, Charanji Lal, 1984 Cri LJ 15

and

T. V. Usman and this Court in

G. S. Prasad, 2003 Cri LJ (NOC) 231

and Gangaiahnaidu Rama Krishna unless it is shown that the sample has been rendered unfit for analysis and the reasons therefor are on account of the delay in sending the sample for analysis and thereby prejudice has been caused to the accused entitling them to acquittal, mere delay in furnishing the report of the public analyst to the accused would not, by itself, be fatal to the case of the prosecution.

73 As held in

T. V. Usman, AIR 1994 SC 1818

there is no time limit prescribed for launching prosecution. It is relevant to note that a time limit is prescribed, under Section 9Â­A of the P.F.A. Act, for sending the second sample for analysis to the Public Analyst, a time limit of 10 days was prescribed under Rule 9(j), prior to its omission with effect from 4Â­1Â­ 1977, for supplying a copy of the report of the public analyst, Rule 22 provides that the quantity of food to be sent for analysis must be as prescribed in the table to the rule and Rule 7(3) requires the Public Analyst to submit his report within 45 days. All these statutory provisions were held in

Tulsiram, 1984 Cri LJ 1731

T. V. Usman, AIR 1974 SC 1818

to be directory and not mandatory. When no time limit is prescribed under the Act for launching prosecution and certain statutory provisions and rules, wherein timeÂ­limit is prescribed, were held to be directory and not mandatory, it cannot be said that mere delay in furnishing a copy of the report of the public analyst to the accused, by itself and without any thing more, is fatal to the prosecution.

74. On what basis can Courts presume that expiry of the âbest beforeâ date or expiry of the shelfÂ­life of the product would, by itself, and without anything more, result in rendering the sample unfit for analysis? The shelf life of products vary from one to the other. While in certain cases the shelf life may be as small as one week, in certain others the shelf life could be as long as a few years. Similarly, the delay in making available a copy of the report of the public analyst may also vary. The delay could range from a period of a few days, after the expiry of the shelf life or the âBest Beforeâ date, to even a few years. Can the same yardstick be applied in all cases to hold that the delay in making available a copy of the public analyst report, beyond the shelf life of the product, has caused prejudice to the accused and denied him his valuable right under Section 13(2)? Even in cases where the report of the public analyst is made available within time, the accused may not exercise his right to have the sample sent for analysis to the Central Laboratory. In such cases, the report of the public analyst is required to be accepted. Can a different yardstick be applied to cases, where despite a copy of the report of the public analyst being furnished immediately after the shelf life of the product has expired and the accused does not exercise his right to have the sample sent for analysis to the Central Laboratory, to hold that delay by itself has caused prejudice to the accused? Answers, thereto, have necessarily to be in the negative.

75. Negligence of officials in discharging their functions, and in not promptly furnishing a copy of the report of the public analyst to the accused, must not result in offenders involved in adulteration of the food/seed being permitted to go scot free, unless prejudice is established. Legitimate prosecution should not be scuttled on mere technicalities, in the absence of any proof of prejudice to the accused.

76. In

Dalchand, 1983 Cri LJ 448

the Supreme Court held thus :Â­

ââ¦â¦.It is well to remember that quite often many rules, though couched in language which appears to be imperative, are no more than mere instructions to those entrusted with the task of discharging statutory duties for public benefit.The negligence of those to whom public duties are entrusted cannot by statutory interpretation be allowed to promote public mischief and cause public inconvenience and defeat the main object of the statuteâ¦â¦â¦â

(Emphasis supplied)

77. Since the eventual test is one of prejudice, which is to be established, on the facts and circumstances of each case, by way of evidence adduced before the learned Magistrate, it is not for this Court, under Section 482, Cr.P.C. to infer or presume that even in case of delay, say of a few days, beyond the shelf life of the product, and in the absence of reasonable explanation for the delay in furnishing a copy of the report of the Public Analyst, the accused is prejudiced and his right, under Section 13(2) of the P.F.A. Act and Section 16(2) of the Seeds Act, is violated.

78. In exercise of its jurisdiction under Section 482, Cr.P.C. this Court does not take upon itself the task of examining the evidence or to record an independent finding that the delay in furnishing a copy of the public analystâs report has resulted in prejudice to the accused. Whether the delay is insignificant or inordinate, whether the delay is attributable to lapses of the prosecution in making available a copy of the public analystâs report, whether on account of the delay in making the report available, the right of the accused under Section 13(2) of the P.F.A. Act or Section 16(2) of the Seeds Act has been rendered illusory as the sample sent to the Central Laboratory is found unfit for analysis due to decomposition by passage of time or for any other reason attributed to lapses on the part of the prosecution, whether inordinate delay in sending the sample for analysis has, by passage of time, rendered the sample âadulteratedâ are all matters to be examined by the learned Magistrate, in the facts and circumstances of each case, on the basis of the evidence adduced. Delay, by itself and without anything more, cannot form the basis for the High Court, in exercise of its jurisdiction under Section 482, Cr.P.C. to quash the criminal proceedings.â

29. Almost similar view is also reiterated by this Court in yet in another decision in case of

Hotel Savera v.State of Gujarat, 2015 AIJE:LÂ­HCÂ­ 233167

wherein also it has been held that expiry of shelfÂ­life of an article would not automatically render the sample unfit for analysis and therefore, merely because the expiry date of the sample has gone by itself, it cannot be said that any prejudice is caused to the accused. Rule 32 has also been relied upon by the Court. There are several decisions which have been relied upon by the counsel for the respondent reported in case of

State of Haryana v.Bhajanlal & othersÂ­, (1992) suppl. 1 SCC 335,

on the issue of exercise of extraordinary jurisdiction and has contended that reliability of allegations are not to eb examined in exercise of extraordinary jurisdiction in nature. It was also further relied upon by a decision reported in case of

State of Haryana v.Brij Lal Mittal and others, AIR 1998 SC 2327

as well as the decision delivered by Delhi High Court in case ofNeerja Bhargava versus State of NCT Delhion the issue of exercise of extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure delivered on 28.09.2015. and then contended not to exercise the extraordinary jurisdiction in favour of the petitioner. The learned counsel has strongly contended that this is not a fit case to exercise extraordinary jurisdiction under Section 482 of the Code of Criminal Procedure.

30. Having heard learned counsel appearing on behalf of the respective parties and having gone through the record in detail, few facts are emerging from the record.

[a] The original complaint is filed in the year 2002 and all through out the petitioners have remained silent on their statutory rights which are now being insisted upon, the present petition has been filed on 12.12.2012 for seeking quashment of the complaint which is immediately after the disposal of the earlier petition at the instance of another accused persons dated 02.12.2012 and all through out it appears that the petitioners have evaded the main case in trial court.

[b] It is also appearing from para 5 of the said decision that there is a specific direction given in the said order dated 02.12.2012 to proceed further with the case at the earliest on merits by the concerned learned Magistrate in accordance with law.

[c] It is also emerged from the record that some of the issues which are raised of prejudice coupled with technical defence are appearing to be part of defence which can be gone into by the concerned court at an appropriate stage.

[d] It is also appeared from the record that the complaint has been filed after getting specific sanction to prosecute from the competent authority and filed along with public analyst report dated 30.09.2002.

[e] it is also appearing from the record that the complaint in question has not been stayed in so far as present petitioners are concerned and therefore, it appears that all through out during passage of time the petitioners have evaded the concerned Court to proceed further with the trial.

[f] It is also emerging from the record that public analyst report has reflected a fungus growth and this report was very much attached to the complaint and therefore on account of that circumstance that fungus growth was visible is a matter of trial to be examined in the context of provisions of the Act.

[g] It is also emerging from the record that the notice has been given not by the petitioner dated 06.08.2002 but it has been given by the partner of Digjam Retail Show Room Shoppers Paradise, C.G. Road, Ahmedabad and therefore, all through out the petitioners have shielded themselves from being prosecuted and have waited for an opportunity to thwart the case against them which has been visualized by filing the petition after disposal of the earlier petition. This conduct is also worth to be taken note of while exercising inherent jurisdiction.

31.Prima facieit appears that ample opportunity was available to the petitioners through out the entire period to agitate the issue which is now being agitated about violation of statutory provisions contained under Section 13(2) of the Act. All these issues could have been agitated at relevant point of time. The conduct of the petitioners as stated above is just to drag on the prosecution and therefore, considering this overall set of circumstance and in view of decision delivered by various Courts, this Court is of the opinion that this is not a fit case to exercise extraordinary inherent jurisdiction at this stage of the proceedings. The delay which has been tried to be projected is on the contrary at the instance of the petitioners and therefore, this aspect is allowed to be agitated by the petitioners at an appropriate stage of the trial of the case. The Court is of the opinion that the observations and the proposition of law propounded by the aforesaid decision reported in 2015 by coordinate bench of this Court, there appears to be no special circumstance from deviating and therefore, no reason to interfere with the complaint in question.

32 In view of the above position coupled with the law laid down on the issue more particularly by Coordinate bench of this Court, Court is of the opinion not to exercise extraordinary jurisdiction in favour of the petitioners. It is found that there are several disputed questions of facts which are required to be gone into an appropriate stage and in exercise of inherent jurisdiction, the court is not suppose to undertake a mini trial or make any roving inquiry and therefore, extraordinary jurisdiction is not permitting this Court to exercise in the background of these peculiar facts of case. The defence has been projected by the petitioners can well be examined during the course of trial and therefore, in opinion of the Court, this is not a fit case to exercise extraordinary jurisdiction.

33. While coming to this conclusion, some of the decisions have been considered by the Court and the relevant extract of the proposition contained in these decisions are narrated very briefly hereinafter.

â10. The law relating to quashing is well settled. If the allegations are absurd or do not make out any case or if it can be held that there is abuse of process of law, the proceedings can be quashed but if there is a triable case the court does not go into reliability or otherwise of the version or the counterÂ­version. In matrimonial cases, the courts have to be cautious when omnibus allegations are made particularly against relatives who are not generally concerned with the affairs of the couple. We may refer to the decisions of this Court dealing with the issue.â

â11. InSuryalakshmi Cotton Mills Ltd. v. Rajvir Industries Ltd., this Court has made the following observations explaining the parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure: ( SCC pp. 685Â­87, paras 17 & 22)

â17. The parameters of jurisdiction of the High Court in exercising its jurisdiction under Section 482 of the Code of Criminal Procedure is now well settled. Although it is of wide amplitude, a great deal of caution is also required in its exercise. What is required is application of the wellÂ­ known legal principles involved in the matter.

22. Ordinarily, a defence of an accused although appears to be plausible should not be taken into consideration for exercise of the said jurisdiction. Yet again, the High Court at that stage would not ordinarily enter into a disputed question of fact. It, however, does not mean that documents of unimpeachable character should not be taken into consideration at any cost for the purpose of finding out as to whether continuance of the criminal proceedings would amount to an abuse of process of court or that the complaint petition is filed for causing mere harassment to the accused. While we are not oblivious of the fact that although a large number of disputes should ordinarily be determined only by the civil courts, but criminal cases are filed only for achieving the ultimate goal, namely, to force the accused to pay the amount due to the complainant immediately. The Courts on the one hand should not encourage such a practice, but, the proceedings which is otherwise genuine. The courts cannot also lose sight of the fact that in certain matters, both civil proceedings and criminal proceedings would be maintainable.â

â12. At the threshold, the High Court should not have interfered with the cognizance of the complaints having been taken by the trial court. The High Court could not have discharged the respondents of the said liability at the threshold. Unless the parties are given opportunity to lead evidence, it is not possible to come to a definite conclusion as to what was the date when the earlier partnership was dissolved and since what date the respondents ceased to be the partners of the firm.â

13. In view of the law laid down by this Court as above, in the present case, the High Court exceeded its jurisdiction by giving its opinion on disputed questions of fact, before the trial Court.

33.3 In case of

N. Soundaram v.P.L. Pounraj And another reported in (2014) 1 SCC 616

paragraph 13 reproduced as under:

â13. It is well settled by this Court in a catena of cases that the power under Section 482 CrPC has to be exercised sparingly and cautiously to prevent the abuse of process of any court and to secure the ends of justice. [ SeeState of Haryana v. Bhajan Lal]. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court should refrain from giving a prima facie decision unless there are compelling circumstances to do so. Taking the allegations and the complaint as they were, without adding or subtracting anything, if no offence was made out, only then the adding or subtracting anything, if no offence was made out, only then the High Court would be justified in quashing the proceedings in the exercise of its power under Section 482 CrPC. [ SeeMCD V. Ram Kishan Rohtagi.]. An investigation should not be shut out at the threshold if the allegations have some substance. [ SeeVinod Raghuvanshi V. Ajay Arora].

â4. In view of the nature of proposed order this Court has purposely avoided to go into the factual details and controversy between the parties. This would prevent prejudice to the appellant as well as to the accused persons in future because after hearing the parties we are of the firm view that the order of the High Court is not in accordance with law and in the facts of the case no interference should have been made with the investigation by the police by quashing the FIR.

5. It has been rightly submitted by the learned counsel for the appellant that ordinarily power under Section 482 CrPC should not be used to quash an FIR because that amounts to interfering with the statutory power of the police to investigate a cognizable offence in accordance with the provisions of CrPC. As per law settled by a catena of judgements, if the allegations made in the FIR prima facie disclose a cognizable offence, interference with the investigation is not proper and it can be done only in the rarest of rare cases where the court is satisfied that the prosecution is malicious and vexatious.

9. We have no hesitation in holding that in the facts of the case, the High Court was not justified in interfering with the police investigation and quashing the FIR. This is not at all a rare case. Without a thorough investigation,it is not possible or proper to hold whether the allegations made by the complainant are true or not. Hence the investigation should have been allowed to continue so that on filing of the report under Section 173 CrPC the affected party could pursue its remedy against the report in accordance with law. Keeping in view the fact that the criminal case was at the stage of investigation by the police the High Court was not justified inholding that the investigation of the impugned FIR is totally unwarranted and that the same would amount to gross abuse of the process of the court. â

34. From the above discussion and analysis of the background of fact, the exercise of extraordinary inherent jurisdiction is not possible to be exercised. Hence, both these petitions are dismissed hereby and interim reliefs which have been granted stand vacated. It is expected that in view of the earlier direction issued by this Court in cognate petition filed at the instance of other accused persons who were discharged the main case which is pending before the learned Trial Court be expeditiously dealt with and it is needless to say that trial Court will examine all the defence of petitioners in accordance with law, after granting appropriate opportunity.

35. With these observations both petitions are disposed of. Rule is discharged.

Uday Umesh Lalit, J.

1. These appeals by special leave challenge the judgment and order dated 08.08.2013 passed by the High Court of Chhattisgarh at Bilaspur in Criminal Reference No.4 of 2013 and in Criminal Appeal No.563 of 2013 affirming the conviction of the appellant under Section 302 IPC and confirming the sentence of death awarded by the Sessions Judge, Durg in Sessions Trial No.96 of 2012. The appellant was awarded death sentence on six counts for having caused the deaths of his wife and five daughters on 19.02.2012. While granting special leave to appeal by order dated 17.01.2014 this Court stayed the execution of death penalty till the disposal of the present appeal.

2. The appellant along with his wife Thaneswari aged about 32 years and five daughters, namely, Nisha, Lakshmi, Sati, Nandini and Sandhya, aged 15, 14, 13, 8 and 5 years respectively and his mother Kejabai (examined as PW-6 in the trial) was residing in Village Mohandipat, P.S. Arjunda, Chhattisgarh. Their house, a single storey structure with five rooms, a verandah and a courtyard, opened in a gali. Opposite to this house, were the houses of Aman Dewangan, Khemlal Dewangan and Derha Dewangan. On either side of their house the immediate neighbours were Bhan Singh Dewangan on one side and Yogendra Sahoo on the other. The appellant with his wife and two daughters had gone to attend a marriage at Nagpur on 11.02.2012 and had returned to the village at about 4-5 p.m. on 19.02.2012. After having dinner everyone had gone to sleep by about 8:00 p.m. Nisha, Lakshmi, Sati and Nandini were with their grandmother Kejabai in one room while the appellant, his wife and daughter Sandhya had slept in the adjoining room.

3. According to the prosecution, at about 1:30 a.m. on 20.02.2012 a report vide General Diary Entry No.671 was made by PW-1 Ishwar Pradhan and PW-2 Santosh Kumar, Village Kotwar. The entry Ext.P-37 was certified in the General Diary by PW-13, Sub-Inspector Krishna Murari Mishra and was to the following effect:

âThe information is related to the Station Officer, K.M. Mishra, Kotwar and Ishwar Pradhan s/o Avadh Pradhan, age 38 years, R/o Mohandipat, are present at the police station Mohandipat and stated that sounds of shouting are coming out from the house of the Dhal Singh Dewangan of village Mohandipat so that it is expected that incident like beating has taken place inside the house. In order to verify the above said incident, I departed to the place of occurrence along with my staff, 1373, 358, 252, 1316, R. 683, 1512, 664 mayak 320 and handed over the work of the police station to the HCM -1118. Sd/- Illegible Station Officer Arjunda, Distt. Balod, Chhattisgarhâ

4. According to the prosecution, the police immediately reached the village and thereafter recorded Dehati Nalisi Ext.P-18 at the instance of PW-6 Kejabai who allegedly informed that at about 10:00 p.m. on 19.02.2012 she woke up after hearing cries of her daughter-in-law Thaneshwari and had thereafter seen the appellant attacking his wife and five daughters with a sharp edged object. This Dehati Nalisi Ext.P-18 was recorded at about 3:00 a.m. on 20.02.2012, whereafter PW-13 Sub-Inspector Krishna Murari Mishra sent dead bodies of Thaneshwari, Nisha, Lakshmi, Sati, Nandini and Sandhya to the mortuary at Gunderdehi. According to PW-13, the bodies of Thaneshwari, Nisha, Lakshmi, Sandhya and Sati were lying in a room marked as Room No.4 in the site map Ext.P-25 and the appellant was found lying in one corner of the same room in an unconscious position with an iron knife lying near his left hand. The body of Nandini was lying in Room No.1, as mentioned in the site map Ext.P-25. PW-13 also sent the appellant in an ambulance to Primary Health Centre, Arjunda with a constable.

a] In his post-mortem report Ext.P-27, he found following injuries on the dead body of Sati:

â(i) One deep incised wound at the back side of joint of skull and neck in the size of 6â x 3â.

(ii) One incised wound over right hand at the base of middle finger and index finger to wrist joint, of size 5â x 2.5â.â

Both the injuries were caused by sharp edged weapon. In his opinion, cause of death was cardio respiratory arrest due to excessive bleeding on account of the said injuries. All the injuries were ante mortem and the death was homicidal in nature.

b] PW-7 also conducted post-mortem on the body of Nisha and found the following injuries:

â(i) One deep incised wound at the joint of skull and neck region of size 7â x 4â.

(ii) One incised wound at the joint of right hand wrist of size 4â x 3â.

All the injuries were ante mortem and caused by sharp edged weapon. Cause of death was opined as cardio respiratory arrest due to excessive bleeding on account of the said injuries and the death was homicidal in nature.

c] PW-7 thereafter conducted post-mortem on the body of Sandhya and found one incised wound on the back of neck of the deceased at the joint of skull in the size of 6â x 2â, from the left to right side of neck region and all blood vessels were cut. He opined that the cause of death was excessive bleeding on account of above injury and shock due to cardio respiratory arrest. All the injuries were ante mortem, caused by sharp edged weapon and death was homicidal in nature.

6. On the same day, PW-14 Dr. Chandrabhan Prasad, Block Medical Officer, Community Health Centre Gunderdehi performed post-mortem on the bodies of Thaneshwari, Lakshmi and Nandini.

a] PW-14 vide post-mortem report Ext.P-64 noticed the following injuries on the dead body of Thaneshwari:

The cause of death was acute hemorrhagic shock due to multiple injuries, all the injuries were ante mortem and the death was homicidal in nature.

[ c] He also conducted postmortem over the dead body of Nandini vide Ext.P-66, wherein he found that there was one deep incised wound over occipital region of size 5â x Â½â x Â¼â. The cause of death was acute hemorrhagic shock due to head injury which was ante mortem and the death was homicidal in nature.

7. Dehati Nalisi Ext.P-18 recorded at 3:00 a.m. led to the registration of FIR Ext.P-51 dated 20.02.2012 bearing No.18 of 2012 at about 4:10 p.m.. On 20.02.2012 the appellant was brought back to the police station at about 6:30 p.m. whereafter vide Ext.P-16 the clothes of the accused which were stated to have blood-stains were taken in custody. The accused was arrested vide arrest memo Ext.P-62 on the same day.

8. During investigation, statements of various witnesses were recorded. On 06.03.2012 PW-6 Kejabai was produced before Judicial Magistrate, First Class, Gunderdehi, at the request of the police to record her statement under

(1) Last month about on date 12-13, my son and my sonâs wife went to Nagpur at marriage function. After 8-10 days, they came to Mohandipat being dispute. They went to Pallekalan from there. Thereafter, they came to Mohandipat at 4:45 p.m. in the evening. That day was Sunday. After taking meal and all slept, at night about 10 p.m. I heard a sound like a cat howling. I afraid and went towards daughter-in-lawâs room. I saw there, dead body of younger child. Thereafter, I ran away shouting. I returned home yet. I came together some people and saw the son was fainted and saw the dead body of children. I want to say just this.

Typing has done as per my direction Narrator is correct & accepted.

Sd/- Illegible Sd/- Illegible

06.03.2012 06.03.2012

Srikant Srivastava Srikant Srivastava

J.M.F.C., Dondalohara J.M.F.C., Dondalohara

Dist. Chhattisgarh Distt. Chhatisgarh

I, Kejabai Dewangan have signed voluntarily, read out and understood.â

Thus, as against the version in Dehati Nalisi Ext.P-18 implicating the appellant, her statement before the Magistrate did not directly attribute anything to the appellant.

9. On 19.03.2012 a sealed packet containing an iron knife along with requisition Ext.P-61 was sent to PW-14 Dr. Chandrabhan Prasad seeking his opinion whether the injuries suffered by deceased Thaneshwari, Nisha, Lakshmi, Nandini, Sati and Sandhya could be caused by that knife. It was of iron metal with total length of 40 cm and the length of the blade was 5 cm. The knife was stained with blood. A report in the affirmative was given by PW-14 on the back side of the requisition Ext.P-61 under his signature.

10. After completing the investigation, charge-sheet Ext.P-74 was filed on 27.04.2012 against the appellant for the offence punishable under Section 302 IPC on six counts. The prosecution examined 14 witnesses in support of his case, the noteworthy being:-

I. PW-1 Ishwar PradhanSarpanch of the village stated that around 10:30 p.m. on 19.02.2012, PW-2 Santosh, Village Kotwar came to his house and told him that the appellant had killed his wife and daughters. Thereafter, PW-1 reached Gandhi Chowk (stated to be at a distance of 100 yards from the house of the appellant) where he found PW-6 Kejabai sitting in the square with PW-2 Santosh Kumar, PW-3 Neel Kanth, PW-5 Dan Singh. According to the witness, PW-6 Kejabai told them that the appellant had killed his wife and children whereafter they went to the house of the appellant and saw that blood was lying near the door of the room of the appellant. They locked the door of the house. Then along with PW-2 Santosh, Village Kotwar and one Chait Ram Sahu, this witness went to the police station Arjunda and gave information which was extracted in General Diary at Ext.P-37. The witness further stated that after the police reached the village, they entered the house and took the appellant to the hospital in an ambulance as he was in an unconscious condition.

Thus, the primary source of information of the witness was PW-2 Santosh, Village Kotwar and after reaching Gandhi Chowk he had heard PW-6, Kejabai implicating the appellant. Though he went to the police station thereafter, Ext.P-37 extract of the General Diary Entry does not disclose any awareness of the essential features or details of the crime or the fact that the murders had taken place.

II. PW-2 Santosh, village Kotwar, stated that Jeevan Dewangan, neighbour of the appellant came to his house at about 11:00 p.m. and told him that the appellant had murdered his wife and daughters with an iron knife, whereafter he along with PW-1 Ishwar Pradhan and PW-3 Neel Kanth had gone to the house of the appellant. They found the wife and children of the appellant lying dead and the appellant in an unconscious condition. Thereafter, he along with PW-1 Ishwar Pradhan and one Vijay went to the police station and gave relevant information. According to the witness, by the time they came back, the police had already reached the village and PW-6 Kejabai had disclosed to the police that it was the appellant who had killed his wife and five children. The witness further stated that the appellant was moved to the hospital in an ambulance as he was unconscious.

The source of information for this witness was one Jeevan Dewangan. Going by the version of this witness, he and PW-1 were already aware that the wife and children were lying dead in the house of the appellant before they reached the police station. However, extract Ext.P-37 of the General Diary does not disclose any such knowledge or awareness.

III. PW-3 Neel Kanthstated that at about 12.00 midnight Ganga Ram Sahu and Chait Ram knocked the door of his house and informed him that the appellant had killed his wife and five daughters. The witness reached Gandhi Chowk where he found PW-6 Kejabai crying loudly that the appellant had killed his wife and five children. All the villagers thereafter went to the house of the appellant and found that there were blood stains in the verandah. PW-1 Ishwar Pradhan was then sent along with PW-2 Santosh and Chait Ram to make a report to the police. According to the witness the police reached the village after an hour and thereafter they went to the house of the appellant. The wife and the children of the appellant were lying dead while the appellant was lying in an unconscious condition.

According to the version of this witness, everyone was aware of the fact that the murders had taken place. Yet, the reporting vide Ext.P-37 is otherwise.

IV PW-4 Anjor Singh Dewangan, father-in-law of the appellant stated that he had come to know from the villagers that the appellant had killed his wife and five daughters. This witness did not say that he had heard PW-6 Kejabai implicating the appellant.

V PW-5 Dan Singh Dewangan, step father of the appellant stated that at about 12 midnight PW-2 Santosh, Chait Ram and Ganga Ram came and called him. They also awoke PW-1 Ishwar Pradhan. According to the witness he went towards the house PW-6 Kejabai along with PW-1 Ishwar Pradhan and found that PW-6 Kejabai was crying aloud that the appellant had killed his wife and five daughters. According to the witness after seeing the place of incident PW-1 Ishwar Pradhan, PW-2 Santosh, Village Kotwar and Chait Ram went to the police station to lodge the report. This witness also stated that when the police came they found the wife and five daughters of the appellant lying dead and the appellant was lying unconscious.

VI PW-6 Kejabaiin her examination stated as under:

âMy son Dhal Singhâs wifeâs name is Thaneshwari Bai. My son the accused and Thaneshwari Bai had five daughters whose names are Sandhya, Nisha, Laxmi, Sati, Nandini. My son was involved in the work of cutting & selling chicken. My daughter-in-law Thaneshwari and above stated five girls are dead. They died during Mahashivratri of this year.

Incident occurred about 8 months back. Before the incident, my son Dhal Singh, daughter-in-law Thaneshwari and their two daughters had gone to Nagpur to attend the marriage of brother-in-law and sister-in-law of my son and they came back on Sunday. They came back to home at around 5.00 Oâ clock in the day. Incident occurred on same day. We went to sleep at 8.00 Oâclock in the night after taking dinner I and four girls were sleeping in my room. My son, the accused daughter-in-law Thaneshwari and youngest daughter Sandhya were sleeping in another room. I woke up in the night and reached to verandah for drinking water. I saw the girl Sandhya lying unconscious in the front of room of my son Dhal Singh. Thereafter, opening the door of the house I fled crying outside on the road. I donât know what I was crying because I was not in conscious state of mind. As I was crying outside like mad, the villagers came there. I cannot tell the facts stated by me to the villagers. I donât know if I had come back to the village because I was not in conscious state of mind.â

The aforesaid statement, though generally consistent with her statement under Section 164 of the Code, was against the assertions made in Dehati Nalisi Ext.P-18. She was declared hostile and was permitted to be cross-examined by the public prosecutor. She denied having stated about the incident to PW-1 Ishwar Pradhan, PW-2 Santosh, Village Kotwar, PW-5 Dan Singh and to other villagers as well as to the police, as alleged. She accepted her statement given under Section 164 of the Code.

11. The medical evidence on record was unfolded through PW-7 Dr. Ajay Pal Chandrakar and PW-14 Dr. Chandrabhan Prasad, as stated above. PW-13 Sub-Inspector Krishna Murari Mishra proved extract of General Diary Entry at Ext.P-37 and site map Ext.P-25. He said that he had found the appellant lying in an unconscious condition and had sent him to the Primary Health Centre, Arjunda with a constable. In his statement under Section 313 of the Code of Criminal Procedure, the appellant claimed innocence and submitted that he knew nothing as he was unconscious.

12. After considering the evidence on record, the Sessions Court, District Durg by its judgment and order dated 23.04.2013 in Sessions Case No.96 of 2012 found the appellant guilty of offence punishable under Section 302 IPC on six counts. Though the statement of PW-6 Kejabai in court had not attributed any criminal act to the appellant, in the opinion of the trial court, her version implicating the appellant, as spoken to by PWs 1, 2 , 3 and 5 would be admissible under Section 6 of the Evidence Act. Placing reliance on those statements of PWs 1, 2, 3 and 5 as well as failure on part of the appellant in not offering any explanation how the crime was committed, the trial court found that the Prosecution was successful in bringing home the case against the appellant. Having thus convicted the appellant on six counts under Section 302 IPC, by a separate order of even date, the trial court awarded death sentence to the appellant, subject to confirmation by the High Court in terms of Chapter 28 of the Code.

13. The Reference under Section 366 of the Code for confirmation of death sentence was registered as Criminal Reference No.4 of 2013 in the High Court of Chhattisgarh at Bilaspur. The appellant also filed an appeal against his conviction and sentence vide Criminal Appeal No.563 of 2013. The Reference as well as the appeal were dealt with and disposed of by the High Court vide its judgment and order dated 08.08.2013. It was observed by the High Court as under:

â23. Minute examination of the evidence, oral and documentary available on record, makes it clear that on 19.2.2012 the accused/appellant had killed his wife and five daughters by causing them number of injuries on their vital parts by chopper/knife used for cutting hen.

24. As per deposition of Kejabai (PW-6), on the fateful night, the accused/appellant was the only male member in his house and he was sleeping along with his wife Thaneshwari and youngest daughter Sandhya, whereas Kejabai was sleeping with his four daughters in a separate room and door of the house was bolted from inside. Thus the possibility of entry by some stranger in the house of the accused/appellant is not there. Since the accused/appellant was the only inmate of the house, it is for him to explain as to how six dead bodies have been found there. However, no such explanation has been offered by him in his statement under Section 313 of Cr.P.C. As per Section 106 of the Evidence Act, it is the duty of the accused to explain the incriminating circumstance proved against him while making a statement under Section 313 of Cr.P.C. Keeping silent and not furnishing any explanation is an additional link in the chain of circumstances to sustain the charges against him. Furthermore, as per FSL report Ex.P/69 blood was found on the clothes of the accused/appellant and the weapon of offence chopper/knife and as per serological report Ex.P/72, the blood present on the clothes and the knife was found to be human blood.

25. The evidence of Kejabai (PW-6) also makes it clear that upon seeing the dead body of Sandhya, she came out of the house screaming. This witness has expressed her ignorance as to the things disclosed by her to the villagers. However, from the statements of PW-1, PW-2, PW-3 and PW-5, it is apparent that immediately after the incident, Kejabai informed them that it is the accused/appellant who killed his wife and five daughters. These witnesses have categorically stated that immediately after the incident they came to know about the commission of murder by the accused/appellant and they also remained firm in their cross-examination.â

The High Court further found the statements of PWs 1, 2, 3 and 5 admissible under Section 6 of the Evidence Act and stated as under:

â27. After minute examination of the evidence of PW-1, PW-2, PW-3 and PW-5, we are of the considered view that the same is admissible under Section 6 of the Evidence Act as res gestae. For these witnesses, there was no occasion for concoction or improvement by any means at that juncture. The fact that immediately after seeing the dead body Kejabai came out of the house and narrated the incident to the villagers has been duly proved by these witnesses.â

It was argued on behalf of the appellant that as stated by all the prosecution witnesses including the Investigating Officer, the appellant was found in an unconscious condition and was removed to the hospital but no medical reports were placed on record by the prosecution. The High Court dealt with the submission as under:

â30. We also find no force in the argument of counsel for the appellant that the police has not produced medical report of the appellant clarifying his position as to how he fell unconscious when bodies of the deceased persons were recovered from his house and what treatment was given to him in hospital. It appears that during killing of six persons and after seeing their blood, the accused/appellant might have tired or lost his mental balance. In such a situation, even if the appellant was lying unconscious near the dead bodies, it hardly makes any difference for proving his involvement in commission of the offence. It is not the case of the defence that some third person had entered the house, assaulted the appellant and then committed murder of six persons.â

Having affirmed the conviction of the appellant as recorded by the trial court, the High Court observed that the instant case did satisfy the parameters laid down by this Court and was ârarest of rare casesâ justifying capital punishment. The High Court thus confirmed the death sentence awarded to the appellant.

14. In this appeal challenging the correctness of the orders of conviction and sentence, we have gone through the entire record and considered rival submissions. The matter principally raises two questions (a) whether the statements of PWs 1, 2, 3 and 5 are admissible under Section 6 of the Evidence Act and could be relied upon and (b) whether the circumstances on record satisfy the principles laid down by this Court in its various judgments as regards appreciation of cases based on circumstantial evidence.

15. The evidence of witnesses PWs 1 and 2 discloses that the primary source of their knowledge about the crime was Jeevan Dewangan who had disclosed it to PW-2, who in turn disclosed it to PW-1. Similarly, the source of information about the crime for PW-3, was the disclosure by Ganga Ram Sahu and Chait Ram. Chait Ram had also gone along with PWs 1 and 2 to the police station. However, none of these three persons, namely, Jeevan Dewangan, Ganga Ram Sahu and Chait Ram were examined by the prosecution. No reason for their non-examination is placed on record. The non-examination of these persons goes to the root of the matter and raises serious doubts.

16. According to PWs 1 and 2, after receipt of information about the crime, they had reached Gandhi Chowk where PW-6 Kejabai was crying aloud that the appellant had killed his wife and children. Thereafter PWs 1 and 2 along with Chait Ram went to the police station and at their instance information was recorded in General Diary at Ext.P-37. The extract of General Diary Entry is completely silent about any relevant features regarding the crime or the role of the appellant and in fact shows lack of knowledge about the crime. All that it says is that they had heard sounds of shouting coming from the house of the appellant. It is not the case of the Prosecution, that the recording vide Ext.P-37 was in any way incorrect. The version of PWs 1 and 2 in Court is thus completely inconsistent with the contemporaneous record, namely, extract Ext.P-37. If they were aware that the appellant had killed his wife and daughters even before they reached the police station, as they now claim in Court, the nature of their reporting would have been completely different. The fact that their reporting did not disclose any essential features of the crime is accepted on record and their reporting was also never treated as FIR in the matter. We find it extremely difficult to rely on the testimony of PWs 1 and 2 and would presently eschew from our consideration the statements of these two witnesses.

17. We are now left with PWs 3 and 5. Even according to PW-3 his source of knowledge about the crime was disclosure by Ganga Ram Sahu and Chait Ram. He further said that after reaching Gandhi Chowk he found PW-6 Kejabai was crying aloud that it was the appellant who had killed his wife and five children. To similar effect is the assertion of PW-5. These two witnesses also claim that the villagers had sent PWs 1 and 2 with Chait Ram to make a report to the police. But unlike PWs 1 and 2, these witnesses themselves had not gone to the police station and therefore their version needs to be considered independently. The question that arises is whether such assertions on part of PWs 3 and 5 come within Section 6 of the Evidence Act and could be relied upon.

18. Before we deal with the applicability of Section 6 of the Evidence Act to the facts of the present case, we may quote the Section 6 and illustration (a) below said Section:-

6. Relevancy of facts forming part of same transaction

Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant whether they occurred at the same time and place or at different times and places.â

Illustration

â(a) A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.â

a bus was set on fire which resulted in the death of 23 passengers. Statements of two seriously injured fellow passengers were recorded by the Magistrate as it was thought that they might succumb to their injuries, in which event their statements could be pressed into service under Section 32 of the Evidence Act. Fortunately, they survived. But while answering the question whether those statements could now be relied upon under Section 6, this Court found that there was appreciable interval between the criminal act and the recording of their statements by the Magistrate and as such the statements could not be relied upon with the aid of Section 6. It was observed:-

â15. The principle of law embodied in Section 6 of the Evidence Act is usually known as the rule of res gestae recognised in English law. The essence of the doctrine is that a fact which, though not in issue, is so connected with the fact in issue âas to form part of the same transactionâ becomes relevant by itself. This rule is, roughly speaking, an exception to the general rule that hearsay evidence is not admissible. The rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae. In

R. v. Lillyman,(1895-99) All. E.R. 586

a statement made by a raped woman after the ravishment was held to be not part of the res gestae on account of some interval of time lapsing between the act of rape and the making of the statement. Privy Council while considering the extent up to which this rule of res gestae can be allowed as an exemption to the inhibition against hearsay evidence, has observed in

Teper v. R.,(1952) 2 All. E.R. 447

thus:

âThe rule that in a criminal trial hearsay evidence is admissible if it forms part of the res gestae is based on the propositions that the human utterance is both a fact and a means of communication and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words and the dissociation of the words from the action would impede the discovery of the truth. It is essential that the words sought to be proved by hearsay should be, if not absolutely contemporaneous with the action or event, at least so clearly associated with it that they are part of the thing being done, and so an item or part of the real evidence and not merely a reported statement.â

The correct legal position stated above needs no further elucidation.

16. Here, there was some appreciable interval between the acts of incendiarism indulged in by the miscreants and the Judicial Magistrate recording statements of the victims. That interval, therefore, blocks the statements from acquiring legitimacy under Section 6 of the Evidence Act. The High Court was, therefore, in error in treating Exts. P-71 and P-75 as forming part of res gestae evidence.â

20. In

Krishan Kumar Malik v. State of Haryana,(2011) 7 SCC 130

while testing the veracity of the version of the prosecutrix that she was subjected to rape, the fact that she had ample opportunity and occasion to disclose to her mother and sister soon after the criminal act, in which case their statements could have lent assurance, was taken into account. This Court observed as under:-

â33. As per the FIR lodged by the prosecutrix, she first met her mother Narayani and sister at the bus-stop at Kurukshetra but they have also not been examined, even though their evidence would have been vital as contemplated under Section 6 of the Evidence Act, 1872 (for short âthe Actâ) as they would have been res gestae witnesses. The purpose of incorporating Section 6 in the Act is to complete the missing links in the chain of evidence of the solitary witness. There is no dispute that she had given full and vivid description of the sequence of events leading to the commission of the alleged offences by the appellant and others upon her. In that narrative, it is amply clear that Bimla Devi and Ritu were stated to be at the scene of alleged abduction. Even though Bimla Devi may have later turned hostile, Ritu could still have been examined, or at the very least, her statement recorded. Likewise, her mother could have been similarly examined regarding the chain of events after the prosecutrix had arrived back at Kurukshetra. Thus, they would have been the best persons to lend support to the prosecution story invoking Section 6 of the Act.

37. Section 6 of the Act has an exception to the general rule whereunder hearsay evidence becomes admissible. But as for bringing such hearsay evidence within the ambit of Section 6, what is required to be established is that it must be almost contemporaneous with the acts and there could not be an interval which would allow fabrication. In other words, the statements said to be admitted as forming part of res gestae must have been made contemporaneously with the act or immediately thereafter. Admittedly, the prosecutrix had met her mother Narayani and sister soon after the occurrence, thus, they could have been the best res gestae witnesses, still the prosecution did not think it proper to get their statements recorded. This shows the negligent and casual manner in which the prosecution had conducted the investigation, then the trial. This lacunae has not been explained by the prosecution. The prosecution has not tried to complete this missing link so as to prove it, beyond any shadow of doubt, that it was the appellant who had committed the said offences.â

21. The general rule of evidence is that hearsay evidence is not admissible. However, Section 6 of the Evidence Act embodies a principle, usually known as the rule of res gestae in English Law, as an exception to hearsay rule. The rationale behind this Section is the spontaneity and immediacy of the statement in question which rules out any time for concoction. For a statement to be admissible under Section 6, it must be contemporaneous with the acts which constitute the offence or at least immediately thereafter. The key expressions in the Section are ââ¦so connectedâ¦ as to form part of the same transactionâ. The statements must be almost contemporaneous as ruled in the case ofKrishan Kumar Malik(Supra) and there must be no interval between the criminal act and the recording or making of the statement in question as found inGentela Vijayvardhan Raoâs case (Supra). In the latter case, it was accepted that the words sought to be proved by hearsay, if not absolutely contemporary with the action or event, at least should be so clearly associated with it that they are part of such action or event. This requirement is apparent from the first illustration below Section 6 which states â¦. âwhatever was said or doneâ¦. at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.â

22. Considered in the aforesaid perspective, we do not find the statements attributed to PW-6 Kejabai by PWs 3 and 5 to be satisfying the essential requirements. The house of the appellant, according to the record, was at a distance of 100 yards from Gandhi Chowk, where these witnesses are stated to have found PW-6 Kejabai crying aloud. Both in terms of distance and time, the elements of spontaneity and continuity were lost. PW-6 Kejabai has disowned and denied having made such disclosure. But even assuming that she did make such disclosure, the spontaneity and continuity was lost and the statements cannot be said to have been made so shortly after the incident as to form part of the transaction. In the circumstances, we reject the evidence sought to be placed in that behalf through PWs 3 and 5. Even if we were to accept the version of PWs 1 and 2, the same would also suffer on this count and will have to be rejected.

23. We are therefore left with certain pieces of circumstantial evidence and have to see if those circumstances bring home the case of the prosecution. The principles how the circumstances be considered and weighed are well settled and summed up in

Sharad Birdichand Sarda v. State of Maharashtra,(1984) 4 SCC 116

as under:

â153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned âmust or shouldâ and not âmay beâ established. There is not only a grammatical but a legal distinction between âmay be provedâ and âmust be or should be provedâ as was held by this Court in

Shivaji Sahabrao Bobade and another v. State of Maharashtra,(1973) 2 SCC 793

where the observations were made:

âCertainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between âmay beâ and âmust beâ is long and divides vague conjectures from sure conclusions.â

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty,

(3) the circumstances should be of a conclusive nature and tendency,

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.â

24. We now consider the circumstances which have weighed with the Courts below:-

a] The appellant was the only male member residing with his mother, wife and five daughters.

b] The house in question which opened in a gali was bolted from inside on the fateful night.

c] The appellant was found lying unconscious in a room where there were five dead bodies with another dead body in the adjoining room.

d] A knife, which could possibly have caused injuries to the deceased, was lying next to his left hand.

e] His clothes â âlungiâ to be precise, were found to be having blood stains with blood of human origin.

f] He had offered no explanation how the incident had occurred and as such a presumption could be drawn against him under Section 106 of the Evidence Act.

In the face of these circumstances, according to the Courts below, the only possible conclusion or hypothesis could be the guilt of the appellant and nothing else. The absence of any explanation on part of the appellant was taken as an additional link in the chain by the High Court.

25. InSharad Birdichand Sardaâs case (Supra), the absence of explanation and/or false explanation or a false plea was considered in the context of appreciation of a case based on circumstantial evidence. It was observed:-

â150. The High Court has referred to some decisions of this Court and tried to apply the ratio of those cases to the present case which, as we shall show, are clearly distinguishable. The High Court was greatly impressed by the view taken by some courts, including this Court, that a false defence or a false plea taken by an accused would be an additional link in the various chain of circumstantial evidence and seems to suggest that since the appellant had taken a false plea that would be conclusive, taken along with other circumstances, to prove the case. We might, however, mention at the outset that this is not what this Court has said. We shall elaborate this aspect of the matter a little later. 151. It is well settled that the prosecution must stand or fall on its own legs and it cannot derive any strength from the weakness of the defence. This is trite law and no decision has taken a contrary view. What some cases have held is only this: where various links in a chain are in themselves complete, then a false plea or a false defence may be called into aid only to lend assurance to the court. In other words, before using the additional link it must be proved that all the links in the chain are complete and do not suffer from any infirmity. It is not the law that where there is any infirmity or lacuna in the prosecution case, the same could be cured or supplied by a false defence or a plea which is not accepted by a court.

161. This Court, therefore, has in no way departed from the five conditions laid down in

Hanumant case, (1952) SCR 1091

Unfortunately, however, the High Court also seems to have misconstrued this decision and used the so-called false defence put up by the appellant as one of the additional circumstances connected with the chain. There is a vital difference between an incomplete chain of circumstances and a circumstance which, after the chain is complete, is added to it merely to reinforce the conclusion of the court. Where the prosecution is unable to prove any of the essential principles laid down in Hanumant case , the High Court cannot supply the weakness or the lacuna by taking aid of or recourse to a false defence or a false plea. We are, therefore, unable to accept the argument of the Additional Solicitor-General.â

26. Even otherwise, the fact that the appellant was lying unconscious at the scene of occurrence is accepted by all the prosecution witnesses including the Investigating Officer, who sent the appellant to the Primary Health Centre for medical attention. Since he was sent by the Investigating Officer himself, the prosecution ought to have placed on record the material indicating what made him unconscious, what was the probable period of such unconsciousness and whether the appellant was falsely projecting it. However, nothing was placed on record. Neither any doctor who had examined him was called as witness, nor any case papers of such examination were made available. In the absence of such material, which the prosecution was obliged but failed to place on record, his explanation cannot be termed as false. The explanation that he knew nothing as he was unconscious cannot be called, âabsence of explanationâ or âfalse explanationâ. So the last item in the list of circumstances cannot be taken as a factor against the appellant.

27. Coming to the circumstance at Sl. No.(e) as mentioned above, the clothes of the accused were not seized immediately at the place of occurrence. He was first sent to the Primary Health Centre for medical attention and later in the day was brought back to the police station, where the seizure took place. The seizure memo Ext.P-16 does not mention the word âlungiâ but uses the expression âIstamaliâ. Even if âIstamaliâ is taken to be âlungiâ, the Arrest Memo Ext.P-62 mentions his clothes to be âFull Pant and Shirtâ and further mentions, ânothing found on the person of the accused except clothes worn by himâ. According to FSL report Ext.P-69 and serological report Ext.P-72 what was sent for examination and analysis was a lungi which was found to be stained with blood of human origin. It is not clear how lungi could be seized if the appellant was in âfull pant and shirtâ and there was nothing else on his person. The constable who had taken the appellant to the Primary Health Centre and who could have thrown better light on this aspect, was not examined. Apart from the fact that the clothes were not seized immediately at the place of occurrence, if the appellant was found lying in the room in an unconscious state with five dead bodies around, the possibility that his clothes had otherwise got stained with blood which was spotted everywhere including the verandah cannot be ruled out. In our view, therefore, this circumstance is not conclusive in nature and tendency which could be considered against the appellant.

28. The site map Ext.P-25 shows the house to be a single storey structure with a verandah and court-yard open to sky. Though the door of the house which opened in the gali was stated to have been bolted from inside, the rooms were not locked and the possibility of a person/persons other than the inmates of the house getting into the house cannot be ruled out. Furthermore, the fact that the appellant was lying unconscious and no material having been placed on record clearly indicating that the appellant was falsely projecting to be unconscious, the hypothesis that the appellant could be innocent is a possibility. The prosecution did not gather the finger prints either in the house or even on the iron knife which was allegedly used for committing the offence in question. If the finger prints on the knife were to be that of the appellant alone, such factor could certainly have weighed against the appellant. However, the absence of such conclusive material coupled with other circumstances on record do suggest reasonable possibility of the hypothesis of innocence of the accused. The law regarding appreciation of cases based on circumstantial evidence is clear that the chain of evidence must be so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must exclude every possible hypothesis except the one to be proved namely the guilt of the accused. In our view, the circumstances at Sl Nos. a, b, c and d mentioned above do not form a complete chain of evidence as not to leave any reasonable ground for the conclusion consistent with the innocence of the appellant nor do the circumstances exclude every possible hypothesis except the guilt of the accused.

29. In the circumstances, we hold that the prosecution, on the basis of admissible evidence on record, has not proved its case against the appellant. The appellant, therefore, deserves to be acquitted. Concluding thus, we allow these appeals, set aside the judgments of conviction and sentence recorded by the Courts below against the appellant and acquit him of all the charges leveled against him. The appellant be set at liberty immediately unless his custody is required in any other case.

Prafulla C. Pant, J.

I have the benefit of going through the draft judgment of Honâble Mr. Justice Uday Umesh Lalit. With great regard, I beg to differ with his Lordship, on the point that the prosecution has failed to prove the charge against the appellant.

2. The prosecution story, medical evidence on record, and statements of witnesses of facts have already been narrated by his Lordship Justice Lalit. Briefly stated, prosecution story is that on 19.02.2012 between 10.00 to 11.00 p.m. the appellant Dhal Singh Dewangan has committed murder of his wife Thaneshwari and five minor daughters, namely, Nisha, Laxmi, Sati, Nandini and Sandhya with a knife. PW-6 Kejabai, mother of the appellant, came out of the house at about 10.30 p.m. shouting that the accused is assaulting his wife and daughters. PW-1 Ishwar Pradhan, Sarpanch of the village, on receiving information about it through PW-2 Santosh Kumar Mahar, went to the spot, whereafter he along with Santosh Kumar Mahar and two others went to the Police Station, Arjunda (Distt. Balod, Chhattisgarh). The police, on their information, made Entry No. 671 in the General Diary and PW-13 Krishna Murari Mishra, Station House Officer, rushed to the spot at about 1.30 a.m., i.e. in the wee hours of 20.02.2012. A Dehati Nalishi (Ext. P-18) at the instance of PW-6 Kejabai was registered at about 3.00 a.m. and the crime relating to offence punishable under Section 302 of Indian Penal Code (IPC) was investigated. The dead bodies were sealed and inquest report prepared by the police. The autopsy on three of six dead bodies, namely, that of Sati, Nisha and Sandhya was conducted on 20.02.2012 by PW-7 Dr. Ajaypal Chandrakar. The post mortem examination of rest of the three dead bodies, namely, that of Thaneshwari, Laxmi and Nandini was done by PW-14 Dr. Chandrabhan Prasad, on the very day (20.02.2012). Blood stained knife, blood stained clothes and blood stained soil etc. were seized by the police and witnesses interrogated. On completion of investigation charge-sheet was filed against the appellant for trial in respect of offence punishable under Section 302 IPC. The case was committed to the court of Sessions for trial. After the charge was framed, total fourteen Prosecution Witnesses were examined.

3. Out of the prosecution witnesses, PW-1 Ishwar Pradhan, Sarpanch, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu, PW-4 Anjor Singh and PW-5 Dan Singh Dewangan have given evidence as to the fact that when they reached the square of the village, they saw that PW-6 Kejabai was shouting and crying loudly about the incident, and told that the appellant has killed his wife and daughters. The appellant was in the house.

ââ¦..I returned to my house at around 10.30 P.M. Santosh Kumar Mahar (PW-2), the village Kotwar, came to my house and told me that Dhal Singh had cut his wife and children in his house. On receiving this information I reached Gandhi Chowk on my motor cycle. I met Santosh Kumar, the Kotwar, Neelkanth Sahu, Dan Singh Dewangan, Kejabai and Jhaggar â¦.. who all were sitting in the square. Kejabai told there that Dhal Singh has cut his wife and children in his house. On hearing this I didnât believe, therefore, I suggested that lets go to the spot and see. Then we went to the house of Dhal Singh. Blood was lying near the door of the room where Dhal Singh (was) slept. We locked the door of the house. Dhal Singh was present in his house â¦â¦â¦â¦â¦â¦â¦â¦â¦. After locking the door, I, (with) Santosh Kumar, the Kotwar and Chaitram went to Police Station Arjunda and gave information. The police came to the village Mohandipat along with us. The S.P. â¦. also reached there. The police (interacted) with Kejabai there. Kejabai told that the accused Dhal Singh has cut his wife and children with knife. The police entered (in) the house and we kept standing outside the house. We called ambulance No. 108 there and took Dhal Singh to the hospital in it because he was in half (un)conscious conditionâ¦â¦..â

5. PW-2 Santosh Kumar Mahar has narrated the incident as under: â

ââ¦â¦â¦â¦ The incident occurred on 19.02.2012 at 11.00 PM. Jivan Dewangan, the neighbour of accused, came to my house and told that the accused has murdered his wife Thaneshwari and daughters with iron knife used for cutting chicken. Thereafter, I, (with) Neelkanth Sahu, (and) Ishwar Pradhan, the Sarpanch went to the house of accused. We went inside the room and saw that the accused was present in the room of his wife. His wife was lying dead there. The four children were also lying dead there. Wife of the accused was lying dead on the cot and four children were lying on the ground. The accused was lying there in unconscious condition. One iron knife was also lying by his side, and one child was lying in the room of her grandmother. She (the granddaughter) was also dead and back of her neck was cut. Hand, leg and neck of the wife and children were cut. Blood was found on the room and verandah. Then I went to Police Station, Arjunda along with Sarpanch and Vijay and gave information about the incident. â¦â¦â¦â¦â¦â¦.. The police personnel enquired about the incident from the neighbours and Kejabai, the mother of the accused. Kejabai was behaving like mad, but she told that the accused has cut and killed his wife and five children. The police personnel sent the accused to the hospital in ambulance No. 108â¦â¦â¦â¦. â¦â¦ The police seized one knife, bottle of liquor, blood stained pillow, plain earth, blood smeared earth from the place of incident in the night of the incidentâ¦â¦â¦â¦â

The witness has also proved the seizure memo (Ext. P-1 and P-2). The witness has further proved the inquest report and other documents.

6. PW-3 Neelkanth Sahu, corroborating the above facts, states that he came to know about the incident at about mid night through Gangaram Sahu and Chaitram Yadav, who knocked his door. When he opened the door, he was told that Dhal Singh has killed his wife and five daughters. They further told him that Kejabai, mother of the accused, has told about the incident. He further told that when he reached Gandhi Chowk, Kejabai was already present there and crying loudly. This witness also corroborates that Kejabai told him that Dhal Singh has killed his five children and wife.

7. PW-5 Dan Singh Dewangan has also narrated the incident and stated that he got information about the incident at about mid night. He further told that when he went to the house of Kejabai along with Sarpanch, Kejabai was telling that the accused Dhal Singh had cut his wife and five children with the knife. Corroborating the fact that the incident was got reported through Sarpanch to the police, this witness has also stated that the deceased Thaneshwari was lying dead on the cot and the four children were lying dead on the ground. The accused was also there lying on one side. One girl was lying in the room in which Kejabai used to sleep. One knife was also lying by the side of the accused.

8. The above statements of the witnesses have been read in evidence by the trial court and the High Court with the aid of Section 6 of the Indian Evidence Act, 1872. My Lord Justice Uday Umesh Lalit has opined that these statements do not fulfill the requirement of spontaneity and continuity, and as such, cannot be read with the aid of Section 6 of the Indian Evidence Act, particularly when Jivan Dewangan, Gangadhar and Jhaggar, who told them about what PW-6 Kejabai was disclosing, were not examined.

9. However, in my opinion, in the facts and circumstances of the case, non-examination of Jivan Dewangan, Gangaram and Jhaggar is not sufficient for not relying on the statements of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh Dewangan with the aid of Section 6 of the Indian Evidence Act, 1872. The courts below have rightly appreciated the entire chain of circumstances that has been narrated by these witnesses, particularly when they have told what PW-6 Kejabai herself told them at the square, when they reached there. The testimony of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh Dewangan is admissible in evidence as being part of the res gestae. Sections 6, 7, 8 and 9 of the Indian Evidence Act, 1872 deal with the relevancy of facts not in issue but connected with the facts in issue. The provisions contained therein provide as to when the facts though not in issue are so related to each other as to form components of the principal fact. The facts which are closely or inseparably connected with the facts in issue may be said to be part of the same transaction.

10. It is also relevant to mention here that PW-4 Anjor Singh Dewangan, father-in-law of the appellant, has stated that deceased Thaneshwari was his daughter. He further told that he had also gone to Nagpur to attend the marriage in which the appellant and Thaneshwari were present. The witness has further stated that his daughter complained there about the behavior of the appellant. He further told that the accused used to say that his family has become large with daughters only. PW-4 Anjor Singh Dewangan further told that the quarrel took place between the couple in Nagpur itself. He further told that after the marriage, the appellant, Thaneshwari and their daughters came back to their house. The above statement makes it clear that the appellant had the motive for committing the murder of his wife and daughters. The only other inmate in the house, i.e. PW-6 Kejabai had no motive to commit the crime, and had she attempted, she could have been easily over-powered by the appellant and the six deceased.

11. As to the lapses in the investigation pointed out by learned senior counsel for the appellant regarding the fact that clothes of the accused were not seized immediately and seizure memo (Ext. P-16) does not mention the word âLungiâ, I do not think it sufficient to doubt the credibility of the prosecution story. In paragraph 41 of

State of W.B. v. Mir Mohammad Omar and others,(2000) 8 SCC 382

this Court has observed as under: â

ââ¦..Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit the accused in criminal cases. In our perception it is almost impossible to come across a single case wherein the investigation was conducted completely flawless or absolutely foolproof. The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigationâ¦â¦..â

12. Normally, it is not the duty of the accused to explain how the crime has been committed. But in the matters of unnatural death inside the house where the accused had his presence, non-disclosure on his part as to how the other members of his family died, is an important reason to believe as to what has been shown by the prosecution through the evidence on record is true. It is nobodyâs case that any dacoity or robbery had taken place in the fateful night of the incident. There are six members of the family who have been killed brutally. Simple reply by the accused in his statement under Section 313 CrPC that he did not know as to how the incident happened, particularly when he was in the house, does certainly make easier to believe the truthfulness of the evidence that has been adduced by the prosecution in support of charge against him. As far as statement of PW-6 Kejabai is concerned, she has turned hostile. But the reason as to why she has turned hostile is not difficult to be found out. She was going to lose the only son left with her.

13. As to the fact that in the General Diary entry (Ext. P-37) there is no mention of commission of murder of his wife and children by the appellant, it is sufficient to say that the General Diary entries are summary entries relating to movement of police, or relating to the fact that some information regarding an offence has been given at the police station. The doubts created in the present case on the ground that what more could have been mentioned in the General Diary, or that there are minor variations in the statements of PW-1 Ishwar Pradhan, PW-2 Santosh Kumar Mahar, PW-3 Neelkanth Sahu and PW-5 Dan Singh Dewangan, cannot be said to be reasonable doubt. And this Court cannot close its eyes to the ring of truth in the prosecution evidence. In

Himachal Pradesh Administration v. Shri Om Prakash,(1972) 1 SCC 249

in paragraph 7, this Court has observed as under: â

ââ¦â¦â¦..It is not beyond the ken of experienced able and astute lawyers to raise doubts and uncertainties in respect of the prosecution evidence either during trial by cross-examination or by the marshalling of that evidence in the manner in which the emphasis is placed thereon. But what has to be borne in mind is that the penumbra of uncertainty in the evidence before a court is generally due to the nature and quality of that evidence. It may be the witnesses as are lying or where they are honest and truthful, they are not certain. It is therefore, difficult to expect a scientific or mathematical exactitude while dealing with such evidence or arriving at a true conclusion. Because of these difficulties corroboration is sought wherever possible and the maxim that the accused should be given the benefit of doubt becomes pivotal in the prosecution of offenders which in other words means that the prosecution must prove its case against an accused beyond reasonable doubt by a sufficiency of credible evidence. The benefit of doubt to which the accused is entitled is reasonable doubt â the doubt which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy â though unwittingly it may be â or is afraid of the logical consequences, if that benefit was not given. Or as one great Judge said it is ânot the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticismâ. It does not mean that the evidence must be so strong as to exclude even a remote possibility that the accused could not have committed the offence. If that were so the law would fail to protect society as in no case can such a possibility be excluded. It will give room for fanciful conjectures or untenable doubts and will result in deflecting the course of justice if not thwarting it altogether. It is for this reason the phrase has been criticised. Lord Goddard, C.J., in

Rox v. Kritz, 1950 (1) KB 82

at 90], said that when in explaining to the juries what the prosecution has to establish a Judge begins to use the words âreasonable doubtâ and to try to explain what is a reasonable doubt and what is not, he is much more likely to confuse the jury than if he tells them in plain language. âIt is the duty of the prosecution to satisfy you of the prisonerâs guiltâ. What in effect this approach amounts to is that the greatest possible care should be taken by the Court in convicting an accused who is presumed to be innocent till the contrary is clearly established which burden is always in the accusatory system, on the prosecution. The mere fact that there is only a remote possibility in favour of the accused is itself sufficient to establish the case beyond reasonable doubtâ¦..â

14. In the light of the law laid down, as above, on careful scrutiny of the evidence on record, in my opinion, there is no room for reasonable doubt in the present case as to the truthfulness of the evidence adduced against the appellant that he has committed murder of his wife and five daughters on 19.02.2012 between 10.00 and 11.00 p.m. in his house.

15. In the above circumstances, I concur with the view taken by the trial court and the High Court that it is proved on record beyond reasonable doubt that accused Dhal Singh Dewangan has committed murder of his wife and five daughters. As such, the conviction deserves to be upheld.

16. Now, I come to the issue of sentence. Mr. Colin Gonsalves, learned senior counsel appearing for the appellant, submitted that the High Court has erred in affirming the death sentence awarded by the trial court. He further contended that no adequate opportunity was given to the convict to present the mitigating circumstances. He further argued that the burden of proof to show the impossibility of reformation of the accused was on the State.

17. On the other hand, learned counsel for the State submitted that it is one of the rarest of rare cases. It is further submitted that considering the brutality of the offence, the convict deserves no leniency and the courts below have rightly awarded/confirmed the death sentence.

18. I have carefully considered the aggravating and mitigating circumstances in the present case in the light of law laid down by this Court on the point. In

Bachan Singh v. State of Punjab,(1980) 2 SCC 684

in paragraph 206, this Court has given examples of some of the mitigating circumstances which include the probability of the accused not committing criminal acts of violence as would constitute a continuing threat to society, and the probability that the accused can be reformed and rehabilitated.

19. In the instant case, the State has failed to show that the appellant is a continuing threat to the society or that he is beyond reformation and rehabilitation. Both the courts below, in my opinion, appear to have been influenced by the brutality and the manner in which the crime is committed. But this Court cannot ignore the fact that there are no criminal antecedents of the appellant. Also, it cannot be said that he is continuing threat to the society or that he cannot be reformed or rehabilitated. It is also pertinent to mention here that the accused is from socially and economically disadvantaged strata of the society. Therefore, considering all the facts, circumstances and the established principle of law laid down by this Court, in the present case, sentence of imprisonment for life would meet the ends of justice.

20. Accordingly, the appeals are partly allowed. The conviction of the appellant under Section 302 IPC stands affirmed. However, the sentence of death is set aside, instead the appellant is sentenced to imprisonment for life.

Whether invocation of power of the Government under Rule 39 of Part II of the Kerala State and Subordinate Services Rules is to be done as a matter of course, without considering whether it is for a just and equitable reason as mandated in the very same Rule itself, forms the subject matter of consideration in this Original Petition. This gathers more momentum in the light of the fact that the person concerned to whom such benefit is given by the Government (the 4 th respondent) by invoking such Rule has already suffered three different judgments (before the Single Bench and Division Bench of this Court and also before the Supreme Court) who lost the battle through out; but still came to be accommodated by the Government, after dispensing with the basic requirement of sending for training for 2Â½ years.

2. The beneficiary (4 th respondent) was not even called for any interview by the PSC, because of non-satisfaction of the required qualification as notified by the PSC for selection in respect of the physical measurements. Interference declined by the Kerala Administrative Tribunal with regard to the challenge raised against the appointment given to the 4 th respondent in the above regard and declining the relief for the petitioner (the applicant) to have him appointed in the place of the 4 th respondent made him feel aggrieved and hence the Original Petition.

3. Heard Sri.Prasanth.S., the learned counsel appearing for the petitioner, Sri.P.C.Sasidharan, the learned Standing Counsel for the PSC, Sri.M.Mohammed Shafi, the learned Government Pleader appearing for the State and Mr.P.Deepak, the learned counsel who entered appearance on behalf of the 4 th respondent (stated as instructed by Sri.Babu Paul, the learned lawyer who has filed vakalath for the 4 th respondent).

4. Challenge is against Ext.P3 order passed by the Tribunal in O.A.No.393/2015, which was filed with the following prayers:-

i. to declare that the 4 th respondent is not entitled for appointment as Range Forest Officer under the FTR quota in violation of the Special Rules and by passing the Public Service Commission and there is no circumstance existing for invoking Rule 39 of the KS & SSR by the Government in favour of the 4 th respondent disregarding Annexure.A4 to A7 Orders/Judgments of the Honâble High Court and Honâble Supreme Court;

ii. to call for the records leading to Annexure.A16, A20, A21 and A25 and to set aside the same.

iii. to issue appropriate direction or order, directing the respondents 1 to 3 to appoint the applicant as Range Forest Officer replacing the 4 th respondent under the FTR quota with effect the date of appointment of the 4 th respondent as Range Forest Officer.

5. The sequence of events reveals that both the petitioner as well as the 4 th respondent were working as the Deputy Forest Rangers in the Forest Department. They were aspirants to the post of Forest Range Officer which is situated in the next higher level, in the hierarchy. The PSC invited applications from eligible hands and a notification was issued in the year 2005. Qualifications, both academic as well as the physical requirements, were clearly mentioned in the said notification. Both the petitioner and the 4 th respondent had applied for the post and after completion of the process of selection, the PSC published Annexure.A1 select list wherein the name of the petitioner was placed at Serial No.22. The 4 th respondent was never given a placement in the select list for the fact that, when the physical measurement was taken, his chest measurement was only â82 cms.â, whereas the notification clearly insisted that the chest measurement should be â84 cms.â with further expansion of 5 cms. As a result of this, the 4 th respondent was not called for the interview and in turn did not get placement in Annexure.A1 select list.

6. As a matter of fact, for giving promotion to the post of Forest Range Officer, it was very much essential to have sent the eligible candidates for training; which was for a span of 2Â½ years. Originally, considering the available number of vacancies, 21 persons from Annexure.A1 list were sent for training and the next turn was that of the petitioner. The petitioner approached this Court by filing W.P.(C)No.8324/2006 seeking for a direction to send him for training in respect of the anticipated vacancy, but interference was declined and the Writ Petition was dismissed as per Annexure.A2 judgment dated 20.8.2010. The petitioner sought to challenge the same by filing W.A.No.65/2011, wherein also interference was declined and the appeal was dismissed as per Annexure.A3 on 5.1.2012. The rank list expired on 24.5.2006 and the proceedings came to rest for the time being. While so, the petitioner came to note that the person placed at Serial No.9 had not completed the training, which resulted in a vacancy; which slot was sought to be filled up by nominating the petitioner. It was accordingly, that a representation was preferred by him, which however was turned down stating that the rank list had already expired.

7. Coming to the case of the 4 th respondent as mentioned already, he was never given a placement in Annexure.A1 select list, having not even called for the interview, which was sought to be challenged by filing W.P.(C)No.5384/2010. The main contention raised was that the chest measurement was not correctly taken by PSC. It was accordingly that a direction was sought for to conduct a re-measurement by the PSC. Simultaneously, another contention was raised that, as per the relevant Rules/Norms, the requisite chest measurement was only to be â79 cmsâ. The merit of the case was considered in detail and the challenge raised was repelled, dismissing the W.P.(C) No.7569/2006, as per Annexure.A4 judgment dated 14.2.2007. This was taken up in appeal by the 4 th respondent as per W.A.No.885/2007, wherein also interference was declined and the appeal came to be dismissed as per Annexure.A5. The 4 th respondent took a further chance by moving the Apex Court; but the SLP came to be dismissed as per Annexure.A6. Still further, the 4 th respondent moved the Apex Court by way of a âcurative petitionâ, which also ended up in dismissal, as borne by Annexure.A7 dated 3.12.2009. The matter had become final accordingly. 8. It was in the meanwhile, that the 4 th respondent came across the amendment of the Entrance and Training Rules (revised) 2004, whereby the requisite chest measurement of â84 cmsâ. came to be reduced to â79 cms.â with effect from 10.1.2006 (Annexure.R4(A)). It was pointed out that, though the written test was conducted pursuant to notification issued before the amendment, by the time the chest measurement was taken, the amendment had already come into existence and in the said circumstance, the Government was moved by way of Annexure.A8 representation seeking to invoke the power and procedure under Rule 39 of the Kerala State and Subordinate Services Rules and to promote the 4 th respondent to the post in question. On receipt of the said representation, the views of the PSC were called for; upon which the PSC reported in categorical terms as per Annexure.A12, that there was absolutely no merit and the same did not require any re-consideration being not a fit case where Rule 39 was to be invoked. Still, the Government proceeded further and passed Annexure.A16 Government Order dated 13.5.2013, invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules and directed promotion to be given to the 4 th respondent. Subsequently, another order was passed by the Government on 23.8.2013 by way of Annexure.A20; invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules again, and exempting the 4 th respondent from undergoing the mandatory training for being promoted as Forest Range Officer. Quite strangely, the reason was that he was having only a left over service of nearly 4Â½ years and if he was deputed for the mandatory training of 2Â½ years, no much service would be left out. Pursuant to Annexures.A16 and A20, the Principal Chief Conservator of Forest passed Annexure.A21 order dated 23.8.2013 granting the benefit to the 4 th respondent by way of promotion and dispensing with the mandatory training and such other formalities, which was to the chagrin of the petitioner who approached the Tribunal by filing O.A.No.393/2015, referring to the course and events.

9. After hearing both the sides, the Tribunal observed (particularly in paragraph 4) that two judgments were already standing against the applicant and as such there was absolutely no merit to call for interference. The concerned vacancy was not available during the subsistence of the rank list and as such, the applicant was not entitled to get any relief. It was further observed that, even if the appointment of the 4 th respondent invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules was wrong, it could not be a ground for the applicant to contend that he should have been appointed against the post in question, in preference to the 4 th respondent. It was accordingly, that interference was declined and the O.A. was dismissed; which in turn is under challenge in this O.P.

10. During the course of hearing, the learned counsel for the petitioner points out that the orders passed by the Government are per se wrong and illegal in all respects. Though power is vested with the Government to meet the situation by virtue of Rule 39 of the Kerala State and Subordinate Services Rules (which of course contains a ânon-obstante clauseâ), it is a matter of exception to the General Rule and that the power has to be exercised sparingly. Reliance is sought to be placed on the verdicts passed by two Division Bench of this Court as per decision reported in

Vijayakumar v. State of Kerala, 2014 (1) KLT 186

11. The learned Standing Counsel for the PSC submits that the proceedings pursued by the Government are per se wrong and illegal in all respects. The Commission right from the beginning, was resisting such action being pursued as a matter of course; relaxing the norms, simply invoking the power under Rule 39 of the Kerala State and Subordinate Services Rules, to cater to the demand of an individual. A reference was made in this regard in the Note Files [copies of which are forming part of the records (page No.89)]. The learned Standing Counsel for the PSC points out that the Secretary to the Government had objected to the relief sought for by the 4 th respondent; but considering the existence of Rule 39; further course of action was also stipulated to be made, i.e., after taking a decision by the Law Department and to have the file routed through the Chief Secretary for approval and orders. This has not taken place as evident from the âFile Notingâ and no recommendation has been given by the concerned Department or the Chief Secretary, but for the opinion stated as procured from the Law Department, which however does not find a place anywhere in the proceedings. The learned counsel further submits that, admittedly the 4 th respondent was never called for any interview (for not having satisfied the physical measurements). Even on satisfying the physical measurements, a candidate has to undergo a âphysical efficiency testâ, which has not taken place in the case of the 4 th respondent. The necessity to undergo the training of â2Â½ yearsâ has been given a go-bye; and out of turn promotion has been given to the 4 th respondent without considering the chance for grievance to other similarly situated persons and nobody else has been given notice in this regard. Therejection made by the PSC is not merely for want of the chest measurement; adding that the merit and suitability of the 4 th respondent could not be assessed, having got eliminated at the time of verifying the physical measurements itself.

12. The learned Government Pleader submits that the decision taken granting of the benefit of Rule 39 was based on the opinion obtained from the Legal Department to the effect that there was no legal bar in considering the same and that the proceedings were finalised only in the particular facts and circumstances as revealed from Annexures.A16 and A21 orders. It is true that a counter affidavit has been filed by the 2 nd respondent in terms as aforesaid, but no counter affidavit has been filed by the 1 st respondent/State. Sri.P.Deepak, the learned counsel, who entered appearance on behalf of the 4 th respondent submits that Annexure.R4(a) amendment to the relevant Rules was brought about on 10.1.2006. As a matter of fact the chest measurement of â84 cms.â was stipulated only as per the notification issued in the year 2004; prior to which, it was only â79 cms.â By virtue of Annexure.R4(a) amendment effected from 10.1.2006, it was again brought down to 79 cms. and as such, the higher requirement of chest measurement existed only for a period of about one year. After clearing the written test, by the time when the physical measurement was taken, the amendment reducing the chest measurement had already come into force. It was accordingly, that Annexure.A8 representation was preferred before the Government on 29.6.2010 for invoking Rule 39 of the Kerala State and Subordinate Services Rules and to give promotion with all consequential benefits retrospectively. This has been considered favourably and as such, it was never a question of extending any undue advantage to the 4 th respondent, to the exclusion of the petitioner, who was never in the picture at that point of time. The learned counsel submits that the verdict passed by this Court and the Apex Court against the 4 th respondent cannot place any hurdle on the way of the Government in considering the claim with reference to Rule 39 of the Kerala State and Subordinate Services Rules; which position was clarified by the Law Department and hence the proceedings are within the four walls of the law.

13. There is no dispute with regard to the sequence of events or the chronology as displayed. The right of the petitioner to be considered and appointed against the slot vacated by Sri.Shanavas (Sl.No.8) has already attained finality by virtue of Annexures.A2 and A3 judgments and as such, the petitioner cannot establish any fresh right to be appointed against the vacancy occurred in the year 2008, by way of independent proceedings of this nature. But the grievance of the petitioner came to be aired in view of a different cause of action, based on the undue favours given by the Government to the 4 th respondent. In the case of the 4 th respondent also, there is no dispute that the notification issued by the PSC was based on the relevant Rules which existed at that point of time, stipulating minimum chest measurement as â84 cmsâ. There is no challenge against the Rule or the notification.

14. Amendment of the Rule reducing the chest measurement came into force only from 10.1.2006, i.e., after the notification. It may be true, that the 4 th respondent is a person who satisfied the reduced requirement under the amended provision, but whether he could be considered in isolation by invoking power under Rule 39 of Part II, KS & SSR, is the question. It is settled law that the rules of the game cannot be changed during the middle of the game, as made clear by the Supreme Court in

K. Manjusree Vs. State of Andhra Pradesh & another, (2008) 3 SCC 512

A Division Bench of this Court had also occasion to consider the scope of intervention under such circumstance, in connection with the selection of District Judges of this Court and the proceedings including the decision taken by the Full Court on the administrative side were intercepted as per the decision reported in

Jayachandran v. High Court of Kerala, 2010 (4) KLT 49

(to which one of us [PRRM (J)] was a member). This Court also finds that the Apex Court had occasion to consider the said verdict passed by the Division Bench of this Court, and the scope of the invocation of power under Rule 39 of Part II, KS & SSR in

Lakshmi v. State of Kerala, 2012 (1) KLT 902 (SC)

The observations made by the Supreme Court in paragraphs 13 and 18 are extracted below:-

13. The short question that falls for determination in the above backdrop is whether the number of vacancies to be filled up was six as claimed by the High Court or ten as claimed by the appellant. While it is not disputed that the initial notification confined itself to filling up of six vacancies only, confusion relating to the said number arose on account of the High Court recommending invocation of R.39 by the Government to avoid a situation where the candidates who had already been appointed pursuant to the selection process had to go out of service on account of the Court directing preparation of a revised merit list on the basis of the unamended Rules. It is common ground that the vacancies that had arisen after the issue of the Notification were sought to be filled up only with the solitary purpose of somehow saving the three candidates from ouster who were bound to lose their jobs on account of the re-casting of the merit list. All that the High Court intended to recommend to the Government was that four vacancies that were available in the cadre, though the same had arisen after the issue of the Recruitment Notification, could be utilised by the Government if it invoked its power under R.39. The candidates facing ouster could then be continued as an exception to the general rule. It is also beyond dispute that the said recommendations could not have been accepted once the award of additional marks by way of moderation was struck down by the High Court in Jayachandranâs case. The inevitable consequence flowing from that judgment was that anyone who had found place in the merit list only because of the benefit of moderation would have to lose that place and go out of the list. Once that happened the question of retaining the services of the three candidates by invocation of powers vested in the Government under R.39 did not arise. The High Court was in the light of the subsequent development justified in recalling the recommendations made by it which in turn had the effect of limiting the number of vacancies to those originally notified. Mr. Rao was, therefore, right in contending that the proposed utilisation of four vacancies did not ipso facto add to the number of already notified. The addition was contingent upon the Government agreeing to exercise its power under Rules 39. Since the Government did not and could not possibly exercise the said power as a result of the quashing of the marks awarded by way of moderation the proposed addition of the vacancies to the number already notified became clearly infructuous. The High Court could and had rightly recalled the recommendations in the light of the said subsequent development.

18. In the light of the above pronouncements the power vested in the Government under R.39 (supra) could not have been invoked for filling up the vacancies which had not been advertised and which had occurred after the issue of the initial advertisement much less could that be done for purposes of protecting the service of someone who had found a place in the merit list on account of additional marks given to him and who was bound to lose that place by reasons of the judgment of the Court.

15. We are given to understand that the finalisation of the proceedings pursuant to the verdict passed by the Division Bench of this Court resulted in exclusion/elimination of some candidates who were already appointed as District Judges based on the âmoderationâ given; which made the said persons aggrieved; having lost the selection and also their clients/briefs-when they were practising as Lawyers. This was considered by the âFull Courtâ and the matter was referred to the Government for considering whether the power under Rule 39 of the Kerala State and Subordinate Services Rules could be invoked. When things were being pursued by the Government in this regard, the same was sought to be intercepted at the instance of others, who are waiting in the queue to get appointment; by approaching the Apex Court and the Apex Court has held that, it was not a case where power of the State Government could be invoked under Rule 39 of the Kerala State and Subordinate Services Rules.

16. Coming to the scope of Rule 39 of Part II of the K.S and S.S.R, it will be worthwhile to have the said Rule extracted for immediate reference:-

Rule 39 of the K.S and S.S.R:

Notwithstanding anything contained in these rules or in the Special Rules or in any other Rules or Government Orders the Government shall have power to deal with the case of any person or persons serving in a civil capacity under the Government of Kerala or any candidate for appointment to a service in such manner as may appear to the Government to be just and equitable:

Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. This amendment shall be deemed to have come into force with effect from 17th December 1958.â

17. The scope of the said Rule was examined by a Division Bench of this Court in the decision reported in

â23. We have to understand R.39 of the K.S.S.R. as giving power to the Government to set right matters, when otherwise there was imminent hardship or illegalities. What was contemplated was a relaxation in public interest. Appointments to the Police Force are to be made with reference to the rules framed under Public Services Act and it should not be mistaken that R.39 of the K.S.S.R. by itself confers a special sui juris or exclusive power than that is prescribed by the Special Rules. The Special Rules as well as the general rules are to be deemed as issued under the Public Services Act, vide S.2 read with S.3 of the Act. It is not as if the Public Services Act is subservient to R.39 of the K.S.S.R. in fact the parent Act requires full obedience. The foundation for invocation of power under the Rule is justice and equity. The petitioner in the O. P. cannot contend that what was proposed to be given to him was a fresh appointment he being a serving officer. So much so, Government was obliged to recognise the presence of third persons, and claims of his seniors. This is because the petitioner do only come within the first category spoken to by the Rules viz., a case where it deals with a person already in service. Of course, in the case of a fresh candidate, who is yearing for appointment, Government has power to relax, as could be gatherable from the latter part of the Rules, but the petitioner cannot claim that he belongs to this general. Therefore, we have to notice that the principles laid down by the Full Bench in Sreedharan Pillaiâs case would have relevance. The loss of seniority which was to befall on the appellants therefore could not have been overlooked. Such persons were likely to be seriously affected and prejudiced. The judgment and consequential order Annexure.A therefore offended principles of fair play, natural justice and requires to be annulled.â

18. Yet another Bench of this Court had occasion to consider the scope of the said Rule in

Vijayakumar v. State of Kerala, 2014 (1) KLT 186

Paragraph 3 of the said judgment is in the following terms:-

3. The Tribunal, rightly, said that the power of exemption is to be sparingly used and it is a reserve power to be exercised only on valid grounds. When a power to relax a Rule is protected while making a Rule, the power to relax has to be always understood as an exception and as only as the reflection of the existing power to deal with extraordinary circumstances. Any power to relax has always to be understood as one to be exercised in exceptional situations. If a power to relax were to be treated otherwise, that would be in affront to fairness, transparency and hence, would be arbitrary, having regard to Part-III of the Constitution of India.

19. In the verdict passed by the Apex Court reported in

Ashok Kumar Uppal Vs. State of J & K, (1998) 4 SCC 179

it has been observed in paragraph 26, that the power to relax the Recruitment Rules or any other Rule made by the State Government under Article 309 of the Constitution of India has to be exercised with care and caution. It was made clear in paragraph 30, that the Government can exercise the said power to relax the Rules in those cases in which hardship is caused in the implementation of those rules to meet a particular situation or where injustice has been caused to either the individual employee or class of employees. It was also alerted thatthe power cannot be exercised capriciously or arbitrarily, to give undue advantage or favour to an individual employee. On applying the law declared by the Apex Court to the given set of facts and circumstances, it is quite clear that the power was exercised by the Government in favour of the 4 th respondent quite casually; despite his losing the battle throughout (as per several judgments at different levels Single Bench and Division Bench of this Court and also before the Supreme Court). If the relaxation given by the Government is let to stand, it obviously will be in contravention of the relevant rules as it existed at the relevant point of time. That apart, there may be so many other persons like the 4 th respondent, who may be standing in the queue and having more merit than the 4 th respondent. The Government was more eager to extend benefit to the 4 th respondent, whose case was taken in isolation, merely on the basis of a representation made by him, quite conveniently forgetting the merit/fate or chance of others concerned; that too ignoring the clear advice/report/reply given by the PSC and also by the concerned Secretary to the effect that the relaxation of the Rule was not proper. This Court does not require any second thought to hold that the power has been exercised by the Government under Rule 39 extending favours to the 4 th respondent quite casually and arbitrarily, by passing Annexure.A16.

20. Still further, the basic necessity to undergo training for a period of â2Â½ yearsâ has been simply given a âgo-byeâ and the Government found the 4 th respondent to be appointed by promoting him to a higher post involving higher risk, responsibilities and such other instances, even without training. What is the job requirement, what is the job specification, what is the output that is intended to be extracted from a person like the 4 th respondent considering the onerous duty to be discharged, protecting the forest and wild life, etc. are thrown to wind and it remain a matter of mystery. To what extent the interest of the State was intended to be protected by the Government or what was the public interest, if at all any, which was sought to be achieved but for mere extension of undue favours to the 4 th respondent, are not known. The action pursued by the Government cannot but be deprecated in the strongest possible words. This Court finds that the orders passed by the Government by way of Annexures.A16 and A20 as well as the consequential order passed by the Principal Chief Conservator of Forest by way of Annexure.A21 do not stand the test of law. Ext.P3 order passed by the Tribunal declining to interfere with the wrong orders passed by the authorities as above, merely observing that, even if such appointment is wrong, the applicant cannot be benefited, does not reflect the correct way of approach to be made. It cannot but be said that the above orders require to be intercepted and we do so. At the same time, we also make it clear that the fate of the applicant/petitioner herein stands already declared and it has become final, who is not entitled to get any relief for being promoted to the slot in question. The vacancy, if at all any, has to be filled up by the PSC in accordance with the relevant provisions of law. In the said circumstance, we set aside Annexures.A16, A20, A21 and Ext.P3 orders and this O.P. stands allowed to the said extent.

21. Consequential orders shall be passed by the Government/ Authorities of the Forest Department to cause the 4 th respondent to be reverted immediately to the post of Deputy Forest Ranger with effect from the date on which he was given the promotion. Further steps shall be taken to see that the loss suffered by the State, if any, be recovered from the persons concerned, immediately. We are of course aware of the verdict passed by the Supreme Court in

State of Punjab Vs. Rafiq Masih & another, (2015) 4 SCC 334

intercepting steps for recovery. The said decision is not applicable to the case in hand, in view of the factual difference and further since the 4 th respondent was perpetuating the proceedings to get favours, leading to the impugned orders. This actually is a matter, where imposition of cost will be justified. However, considering the persuasive submissions made by the learned Senior Government Pleader, we reluctantly refrain from awarding any cost.

1. As both the impugned orders arise out of the same Criminal Complaint bearing C.C. No.09/1/13 titled as âSubramaniam Swamy v. Sonia Gandhi & othersâ, so all these petitions are being taken together for decision.

2. The factual matrix is that a complaint for offences under Sections 403, 406 and 420 IPC read with Section 120B of the IPC was filed against the accused persons, namely, Sonia Gandhi @ Edvige Albina Antonia Maino, Rahul Gandhi, Motilal Vora, Oscar Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram Pitroda and Young Indian (hereinafter accused Motilal Vora, Oscar Fernandes, Suman Dubey, Sam Pitroda @ Satyanarayan Gangaram Pitroda and Young Indian shall be referred to as âthe petitionersâ) by the respondent No.1-Dr.Subramanian Swamy (hereinafter referred to as âcomplainantâ). It was alleged in the complaint that the accused persons committed fraud, cheating and other offences against All India Congress Committee (Congress Party) and The Associated Journals Ltd. (AJL), who are the publishers of National Herald newspaper, which was founded under the Chairmanship of Sh.Jawarharlal Nehru. The AJL was closed and printing of newspapers was terminated with unpaid debt of Rs.90 crores. On 23.11.2010, Young Indian Pvt. Ltd. was incorporated with Rs.5 lakh as paid up capital in which Ms.Sonia Gandhi and Sh.Rahul Gandhi were having 38% shares each. A board resolution of Young Indian Pvt. Ltd. was passed to own the debt of AJL after obtaining interest free loan from the Congress Party. In a board meeting, AJL agreed to transfer its entire share equity to Young Indian Pvt. Ltd. for Rs.50 lakhs. Accused persons were claimed to be the office bearers of the Congress Party. It was further alleged that AJL was having assets worth Rs.2000 crores which became the property of Young Indian Pvt. Ltd. for a mere Rs.50 lakhs and in this way the public money given to the Congress Party which was exempted from Income Tax Act, was used by the accused persons for committing fraud, cheating, misappropriation and criminal breach of trust.

3. The Trial Court summoned the accused persons on 26.06.2014 which was challenged before this Court by way of filing the Crl.M.C. Nos.3332/2014, 3333/2014, 3335/2014, 3336/2014 & 2156/2015 and this Court was pleased to dismiss the same vide order dated 07.12.2015. On the appearance of the accused persons before the Trial Court on 19.12.2015, the process of the trial began. During the pendency of pre-charge evidence, an application under Section 91 of the Cr.P.C. was moved by the complainant which was allowed vide impugned order dated 11.01.2016 by summoning the documents. Similarly, another application under Section 91 of the Cr.P.C. was also moved by the complainant which was allowed vide impugned order dated 11.03.2016 in which the directions were issued to summon the balance sheets of Congress Party and AJL for the year 2010-11.

016, 672/2016 and 1317/2016 have been filed by the petitioners, namely, Motilal Vora, Young Indian and Sam Pitroda respectively. Feeling aggrieved by the impugned order dated 11.03.2016, two petitions bearing Crl.M.C. Nos.1319/2016 and 1321/2016 have been filed by the petitioners, namely, Suman Dubey and Oscar Fernandes respectively. Notice of the petitions was issued and the complainant did not prefer to file any reply to the same.

5. Arguments advanced by the learned Senior Counsel for the petitioners and the complainant have been heard at length.

6. Mr.Kapil Sibal, learned Senior Counsel for the petitioner- Sam Pitroda argued that while considering the application under Section 91 Cr.P.C., the Court is required to see the desirability and necessity of the documents to be summoned, but in the present case the Trial Court without ascertaining the necessity of the documents ordered to summon them which is against the settled principles of law. It was further argued that no notice of the application for summoning the documents was given to the petitioner though the petitioner was appearing before the Trial Court. He vehemently argued that the order passed by the Trial Court is without due application of mind and the application has been allowed without giving any notice or opportunity of hearing to the petitioner despite being available in the proceedings. In support of the submissions made, judgments in the cases of

Sethuraman v. Rajamanickam (2009) 5 SCC 153

Alagesan and others v. State (2008) Cri.L.J. 3300 (Madras)

Pawan Duggal v. State (2001) 59 DRJ 645

Om Parkash Sharma v. CBI (2000) 5 SCC 679

State of Orissa v. Debendra Nath Padi (2005) 1 SCC 568

Ravindra Kuman Chandolia v. CBI 2012 SCC Online Del 1263

and

Chandgiram v. State 2012 SCC Online 1740

have been relied upon.

7. Dr.A.M. Singhvi, learned Senior Counsel for the petitioner Oscar Fernandes argued that the order passed by the Court below is violative of natural justice as notice of the application was not given to the petitioner though the petitioner was very much participating in the proceedings and was available for that purpose. Dr. Singhvi adopted the arguments advanced by Mr.Kapil Sibal, learned Senior Counsel for the petitioner Sam Pitroda and further argued that the order passed by the Court below is violative of principle of natural justice as it demands the hearing of the opposite party before issuance of the notice, particularly when the order is a non-speaking order without dealing with necessity or desirability of the documents summoned before passing the order. He further referred to certain documents which have been ordered to be summoned without showing any necessity or desirability. He further demonstrated that even in the application necessity and desirability has not been reflected.

8. Mr.R.S. Cheema, learned Senior Counsel appearing for the petitioner Motilal Vora insisted upon the contention that the complainant had not given any detail or contents of the documents and their necessity and desirability. The complainant has also not mentioned which of the document are to be proved through which witness and he even did not mention the name of any witness. He further argued that no notice of the application was given to the petitioner and the impugned order was passed without giving an opportunity of hearing to him. In support of these contentions, he relied upon judgments in the case of

The ratio of these judgments is that a notice needs to be given to a person against whom a proposed action is to be taken and that right of affording opportunity of hearing is a principle of natural justice and it cannot be denied.

9. Mr.Ramesh Gupta, learned Senior Counsel for the petitioner-Suman Dubey also argued that while passing the impugned order, the Court below has not given any notice to the petitioner and thus violated the principle of natural justice. It was further argued that Section 91 of the Cr.P.C. clearly mandates that the necessity and desirability of the documents is to be gone through by the Court while exercising the power under Section 91 Cr.P.C.

10. Ms.Rebecca John, learned Senior Counsel for the petitioner- Young Indian Pvt. Ltd. adopted the arguments advanced by other Senior Advocates for the petitioners and argued that the impugned order deserves to be set aside and the matter be remanded back to the Trial Court to decide afresh. Similarly, she also referred the judgments in the cases of

State of Bombay v. Janardhan and others AIR 1960 Bom 513

and

Niadar Singh v. Maman & others 2001 (57) DRJ 702

11. The complainant appearing in person argued that Section 91 of the Cr.P.C. does not envisage the issuance of notice to the opposite side and the power under Section 91 Cr.P.C. is vested with the Court which the Court can exercise at any time during the pendency of the trial. He further argued that permitting the complainant to summon the documents itself demonstrates the application of mind and implied necessity and desirability of the documents. He further argued that the documents as per the impugned orders have already been summoned and the photocopies thereof have been kept in a sealed cover by the Trial Court. He referred to judgments in the case of

The Assistant Collector of Customs, Bombay and another v. L.R. Melwani and another AIR 1970 SC 962

12. On hearing the rival contentions of learned Senior Counsel for the petitioners as well as the complainant, the question before this Court to be decided is the scope and applicability of Section 91 of the Cr.P.C. and relative consideration at the time of passing the impugned orders. It is necessary to deal with Section 91 of the Cr.P.C., which reads as under :

91. Summons to produce document or other thing

(1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.

(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.

(3) Nothing in this section shall be deemed-

(a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872 ), or the Bankersâ Books Evidence Act, 1891 (13 of 1891 ) or

(b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.â

13. The term âdocumentâ referred in Section 91 of the Cr.P.C. has been taken from Section 3 of the Indian Evidence Act, which reads as under:

âDocumentsâ means any matter expressed of described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

From a reading of Section 91 of the Cr.P.C. and the term âdocumentâ as per Section 3 of the Indian Evidence Act, it is clear that the document means legally permissible document either in the shape of original document or in the shape of copy duly authenticated. It is apparent that the photocopy cannot be termed as document as neither it is original nor it is authenticated without any person authenticating the same. More the reason that the photocopy cannot take the place of original document for proving any particular fact or circumstance. Thus, the summoning of the documents under Section 91 of the Cr.P.C. is summoning of the original documents, particularly in the present case.

14. The other aspect is the applicability of Section 91 of the Cr.P.C. which could be invoked during the pendency of the investigation, inquiry, trial or any other proceedings under the Code. The present case we are dealing with the trial of the petitioners which is at the stage of pre-charge evidence.

Though, it is mentioned that power under Section 91 of the Cr.P.C. could be invoked at any stage of the investigation, inquiry or trial but it is still to be examined by the Court, the purpose and the object of exercising the power envisaged under Section 91 of the Cr.P.C. There could be various situations. Firstly, the documents could be summoned at the instance of the prosecution or the complainant to prove its case at the time of examination of the prosecution witnesses and to get it exhibited and proved through the witness who is under the oral examination. Similarly, it could be summoned at the instance of defence to confront the prosecution witnesses during cross-examination and similarly by the defence at the time of leading the defence evidence to put to the defence witnesses for the purpose of exhibition and establishing its plea in the defence.

Apart from the same, the Court on its own can summon the documents to clear any ambiguity or for the purpose of clarification of any disputed fact or discrepancies in the documents so exhibited by the prosecution/complainant or by the defence, in other words for clarification for reaching a just decision.

In the present case, none of the situations discussed above had arisen to summon the documents.

15. Learned Senior Counsel for the petitioners vehemently argued that the orders passed in the present case do not reflect any necessity or desirability. On this point, judgment in the case of

Ashok Chawla v. Ram Chander Garvan, Inspector CBI MANU/DE/1243/2011

has been referred in which it was observed that Section 91 Cr.P.C. provides that whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons or such officer a written order, requiring the person in whose possession or power such documents are believed to be to attend and produce the same. On similar point, various other judgments have also been relied upon :

(i) âThe power given under Section 91 of the code is a general and wide power which empowers the court, the production of any document or any other thing at any stage of any investigation, inquiry or other proceedings under the Code of Criminal Procedure It is no doubt true that the legislature has circumscribed this power to be exercised only where the court considers that the summoning of such document or things was necessary or desirable in its view, then the court could pass an order both in favor of the accused as well as the prosecution. It is no doubt true that such power would not be exercised where the documents or thing may not be found relevant or it may be for the mere purpose or delaying the proceedings or the order is sought with an oblique motive.â

Neelesh Jain v. State ofRajasthan MANU/RH/0569/2005

(ii) âAs per Section 91 of the Code of CriminalProcedure, when the Court considers that production of any document is necessary or desirable for the purpose of trial of a criminal case, such Court may issue summons for the production of the document sought for. The Court has to judicially consider whether production of the document is relevant for the purpose of trial. Section 91 of the Code of Criminal Procedure does not confer an absolute right on the accused to seek for production of any documents. The party who prays for issuance of summons for production of document has to necessarily demonstrate before the Court that production of such document is material for arriving at a just decision in the case. If the petitioners fail to establish that a particular document is necessary and desirable to be summoned, then the Court shall not summon the document.â

Alagesan and others v. State (2008) Cri.L.J. 3300 (Madras)

(iii) âSection 91 Cr.PC envisages production of any document or other thing which according to the court or police officer in charge of the police station is necessary or desirable for the purpose of any investigation, enquiry or trial or other proceedings under the Code. The width of the powers under this section is unlimited. The only limitations are as regards to the such documents or things to be necessary or desirable for the purposes mentioned therein. Though the case of Debendra Nath Padhi (supra) pertained to the stage of framing of charges and the Apex Court held that at that stage, the case of production of documents was not made out, but the plain and literal reading of provisions of section 91 Cr.PC would reveal that the court was empowered to order for production of document or other thing only when that may be necessary or desirable for the purpose of enquiry, trial or other proceedings. The court has to deal with this issue to satisfy itself as regard to the necessity or desirability of the documents sought to be produced.â

Ravindra Kuman Chandolia v. CBI 2012 SCC Online Del 1263

(iv) âAny document or other thing envisaged under the aforesaid provision can be ordered to be produced on finding that the same is ânecessary or desirable for the purpose of investigation, inquiry, trial or other proceedings under the Codeâ. The first and foremost requirement of the section is about the document being necessary or desirable. The necessity or desirability would have to be seen with reference to the stage when a prayer is made for the production. If any document is necessary or desirable for the defence of the accused, the question of invoking Section 91 at the initial stage of framing of a charge would not arise since defence of the accused is not relevant at that stage. When the section refers to investigation, inquiry, trial or other proceedings, it is to be borne in mind that under the section a police officer may move the Court for summoning and production of a document as may be necessary at any of the stages mentioned in the sectionâ¦.. In so far as Section 91 is concerned, it was rightly held that the width of the powers of that section was unlimited but there were inbuilt inherent limitations as to the stage or point of time of its exercise, commensurately with the nature of proceedings as also the compulsions of necessity and desirability, to fulfill the task or achieve the object. Before the trial court the stage was to find out whether there was sufficient ground for proceeding to the next stage against the accusedâ¦.â

State of Orissa v. Debendra Nath Padi (2005) 1 SCC 568

(v) âSection 91 Cr.P.C. envisages the production of any document or other thing which is required or desirable for the purpose of any investigation, inquiry, trial or other proceedings under the Code, if the Court is satisfied that such documents are essential and required at the relevant stage of proceedings. For allowing the application for production of documents or other things under Section 91 Cr.P.C., the Court has to deal with the issue of their necessity and relevancy and also whether such documents are required at the stage when they are sought to be summoned by the applicant. Summoning of documents cannot be allowed on a mere asking by the applicant or as a matter of routine. Section 294 Cr.PC provided for admission/denial of the documents filed in the Court by the prosecution or the accused. It also provided that where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed and that the court may, in its discretion, require such signature to be proved.â

Chandgiram v. State 2012 SCC Online 1740

16. The facts and circumstances in the present case show that neither any list of witnesses has been furnished with proposed testimony nor any list of documents has been furnished which were to be exhibited through such witnesses to prove the fact and establish the case of the complainant at the pre-charge stage. The applications dated 02.01.2016 and 01.03.2016 have been filed in a casual manner and the orders have been passed in a casual manner without looking into the fact that no list of witnesses was furnished and no summons have been issued for the purpose of summoning the documents for proving a particular fact.

17. The other argument advanced by the learned Senior Counsel for the petitioners is that the impugned orders passed in the present case are violative of the principle of natural justice as the petitioners were neither given any notice nor opportunity of hearing was given to them before passing the impugned orders of summoning the documents. It has been further argued that before passing a judicial order by the Court it is imperative upon the Court passing such order to issue notice to the opposite party or an opportunity of hearing must be given before passing any such order. It is not only a requirement under the principle of natural justice but also non-hearing tantamount to violation of principle of natural justice. On this point, various judgments have been relied upon.

The Honâble Apex Court held that:

(i) ââ¦.No doubt every Court has its plenary powers to deliberate upon every issue agitated before it as well as any other issue arising on the materials placed before it in the manner known to law after giving a prior notice and affording an opportunity of being heard. This power of discharging the statutory functions whether discretionary or obligatory should be in the interest of justice and confined within the legal permissibility. In doing so, the Judge should disengage himself of any irrelevant and extraneous materials which come to his knowledge from any source other than the one presented before him in accordance with law and which are likely to influence his mind on one way or the otherâ¦.â

Union of India and another v. W.N.Chadha AIR 1993 SC 1082

(ii) âVery strangely, the High Court did not even issue notice to the appellant/ complainant, on the spacious ground that the production of the documents, which was sought for by the accused, would cause no prejudice to the appellant/complainant. We fail to understand this logic. After all, if the documents in possession of the appellant/ complainant, which were his personal documents, sought for by the accused and the production of which was rejected by the Trial Court, and which were ordered to be produced by the High Court, at least a hearing should have been given to the appellant/complainant. He could have shown, firstly, that no such documents existed or that there was no basis for the production of those documents, particularly, in view of the fact that he was not even cross-examined in respect of those documents. On this ground, the order of the High Court would have to be set aside.â

Sethuraman v. Rajamanickam (2009) 5 SCC 153

(iii) âThe order directing the investigation on the basis of such vague and indefinite allegations undoubtedly is in the teeth of principles of natural justice. It was, however, submitted that accused gets a right of hearing only after submission of the charge-sheet, before a charge is framed or the accused is discharged vide Sections 227 & 228 and 239 and 240 Cr.P.C. The appellant is not an accused and, therefore, it was not entitled for any notice from the High Court before passing of the impugned order. We are concerned with the question as to whether the High Court could have passed a judicial order directing investigation against the appellant and its activities without providing an opportunity of being heard to it. The case on hand is a case where the criminal law is directed to be set in motion on the basis of the allegations made in anonymous petition filed in the High Court. No judicial order can ever be passed by any court without providing a reasonable opportunity of being heard to the person likely to be affected by such order and particularly when such order results in drastic consequences of affecting one s own reputation. In our view, the impugned order of the High Court directing enquiry and investigation into allegations in respect of which not even any complaint/ information has been lodged with the police is violative of principles of natural justice.â

Divine Retreat v. State of Kerala & Ors.(2008) 3 SCC 542

(iv) âIf a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/ reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault.â

Davinder Pal Singh Bhullar & Ors. (2011) 14 SCC 770

(v) âThe proposition that notice need not be given of a proposed action because, there can possibly be no answer to it, is contrary to the well-recognized understanding of the real import of the rule of hearing. That proposition overlooks that justice must not only be done but must manifestly be seen to be done and confuses one for the other. The appearance of injustice is the denial of justice. It is the dialogue with the person likely to be affected by the proposed action which meets the requirement that justice must also be seen to be done. Procedural safeguards have their historical origins in the notion that conditions of personal freedom can be preserved only when there is some institutional check on arbitrary action on the part of public authorities. The right to be heard has two facets, intrinsic and instrumental. The intrinsic value of that right consists in the opportunity which it gives to individuals or groups, against whom decision taken by public authorities operate, to participate in the processes by which those decisions are made, an opportunity that expresses their dignity as persons.â

18. The rival contention by the complainant is that the notice is not mandatory before passing the order under Section 91 of the Cr.P.C. as it is the discretion of the Trial Court whether a particular document should be summoned or not. He has referred to a judgment in the case of Assistant Collector of Customs, Bombay and another v. L.R. Melwani and another AIR 1970 SC 962 in which it was observed as under :

âThat apart we do not think that the High Court was justified in interfering with the discretion of the learned Magistrate Whether a particular document should be summoned or not is essentially in the discretion of the trial court. In the instant case the Special Public Prosecutor had assured the learned trial Magistrate that he would keep in readiness the statements of witnesses recorded by the Customs authorities andshall make avail able to the defence Counsel the statement of the concerned witness as and when he is examined. In view of that assurance, the learned Magistrate observed in his order:

âThe recording of the prosecution evidence is yet commence in this case and at present there are no materials before me to decide whether or not the production of any of the statements and documents named by the accused in his application is desirable or necessary for the purpose of the enquiry or trial. As stated at the outset, the learned Special Prosecutor has given an undertaking that he would produce all the relevant statements and documents at the proper time in the course of the heating of the case. The request made for the issue of the summons under Section 94, Criminal Procedure Code is also omnibus.â

The reasons given by the learned Magistrate in support of his order are good reasons. The High Court has not come to the conclusion that the documents in question, if not produced in court are likely to be destroyed or tampered with or the same are not likely to be made available when required. It has proceeded on the erroneous basis that the accused will not have a fair trial unless they are supplied with the copies of those statements even before the enquiry commences. Except for very good reasons, the High Court should not interfere with the discretion conferred on the trial courts in the matter of summoning documents. Such interferences would unnecessarily impede the progress of eases and result in waste of public money and time as has happened in this case.â

Apparently, this judgment is not having any relevance with Section 91 of the Cr.P.C.

19. The argument advanced by the complainant cannot be taken into consideration in isolation and it needs to be considered with the combined effect of the exercise of the power under Section 91 of the Cr.P.C. The facts narrated on record do not demonstrate the exercise of discretion under Section 91 of the Cr.P.C. in any other circumstance except to facilitate the evidence of the complainant. No question arises to look into the present case of exercising the power under Section 91 of the Cr.P.C. to summon the document except to render assistance and to facilitate the complainant evidence against the petitioners. In such a scenario, the plea of the complainant appreciating the order passed by the Trial Court without giving any notice or opportunity of hearing to the opposite side that too in a criminal case, would tantamount not only to the violation of principle of natural justice but also to the violation of Article 21 of the Constitution of India.

20. Apart from the discussion made above, it is apparent from the arguments advanced that no list of witnesses or list of documents showing its connectivity with the witnesses or to the facts to be established before the Trial Court cannot be treated as proper application for rendering assistance to the Court to facilitate the evidence by way of seeking documents without demonstrating any necessity or desirability. The applications were moved in a casual manner and the orders passed on the same were also passed in a casual manner without due application of mind. The facts and circumstances mentioned above, non-issuance of notice to the opposite side and impugned orders being non-speaking and without due application of mind as per the law laid down by Honâble Apex Court, culminates into the impugned orders as ineffective, redundant and not sustainable in the eye of law and liable to be set aside.

21. In view of the above discussion and the law laid down as referred above, this Court is of the considered opinion that while passing the order under Section 91 Cr.P.C. for summoning the documents, if the other party has already joined the proceedings, it is entitled to be heard. Consequently, the orders dated 11.01.2016 and 11.03.2016 are hereby set aside along with proceedings consequent thereto.

22. Undisputedly, the complainant always has a right to invoke the provision of Section 91 Cr.P.C. and the Court is always empowered to pass an order in the facts the circumstances of the case, keeping in view the necessity and desirability of the document in situations as discussed above and giving due opportunity of hearing to the other party.

23. However, it is made clear that the right of the complainant shall not be curtailed in any circumstance to move the fresh application during the pendency of the proceedings before the Court below.

24. The petitions and applications, if any, are disposed of accordingly.

1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF LAW, SECRETARIAT, THIRUVANANTHAPURAM-695001.

2. DISTRICT COLLECTOR KANNUR-670001.

3. THE DISTRICT AND SESSIONS JUDGE THALASSERY, KANNUR-679532.

4. THE SUB JUDGE SUB COURT, KANNUR-670001.

BY ADVOCATE GENERAL MR. C.P.SUDHAKARA PRASAD

JUDGMENT

P.R. Ramachandra Menon, J.

Whether an Addl. District Government Pleader/Addl. Public Prosecutor appointed for a term of three years is entitled to have renewal of the term as a matter of course, once the term is expired, without following all the procedures right from the beginning, as envisaged under

Rule 8 of the Kerala Government Law officers (Appointment and Conditions of Service) and Conduct of Cases Rules, 1978

(âKGLO Rulesâ in short), read in conformity with the mandate of Section 24(4) and 24(5) of the Cr.P.C.? Whether it is within the prerogative of the Government to identify the counsel to represent the Government in the litigations, both Civil and Criminal â where the Government is a party or shall it be subject to the upper edge, if any, of the concerned District & Sessions Judge in identifying/selecting the person?. To what extent, consultation is necessary with the District & Sessions Judge for preparing the panel of candidates by the District Collector, to be forwarded to the Government for appointment?. Although renewal is ordered after consultation with the District & Sessions Judge, if it is not in full compliance with the relevant rules/provisions of the Cr.P.C., in preparing the panel, will it be a bar for the Government to have it reviewed or will the Government be bound by applying the principles of estoppel? Will the Government be justified in attempting to remove the existing Addl. Government Pleaders/Addl.Public Prosecutors (whether the term is expired or still to expire) en-bloc, as proposed in Annexure-A7 and if so, will it run contrary to the law declared by the Supreme Court on the point? These are the main questions to be answered by this Court in this Original Petition.

2. The petitioner, a practising lawyer having more than 13 years of standing, was an aspirant to be appointed as an Addl. District Government Pleader/Addl. Public Prosecutor in the vacancy created by the Government as per Ext.P4 G.O.[G.O.(MS)No.40/2013/Law dated 01.03.2013] to cater to the requirements of the new Sub Court & Assistant Sessions Court at Kannur. Pursuant to the said G.O., the District Collector took further steps calling for a panel of qualified advocates with all the relevant particulars from the Bar Associations of Thalassery, Kannur and Payyannur. On receipt of the particulars as above, a consultation was effected with the District & Sessions Judge concerned and thereafter, a penal of âsixâ candidates was forwarded to the Government as per Ext.P6 proceedings sent by the District Collector, Kannur. After considering the same, the Government appointed the petitioner as the Addl.District Government Pleader/Addl.Public Prosecutor in the newly established Sub Court and Assistant Sessions Court at Kannur as per Annexure-A1 G.O. Dated 11.04.2013, for a period of âthree yearsâ from the date of assumption of charge or attainment of sixty years of age, whichever was earlier.

3. The petitioner assumed charge and while continuing as above, the term of the engagement was to expire on 10.04.2016. In the said circumstance, the petitioner submitted a request dated 29.01.2016 before the District Collector, pointing out that he was desirous of having the tenure extended, upon which Annexure-A3 communication was issued to the District Judge by the District Collector on 05.02.2016, seeking to furnish his remarks. Pursuant to this, the District Judge called for a report from the concerned court, i.e., Sub Court and Assistant Sessions Court, Kannur; in response to which, Annexure-A4 report was submitted on 29.02.2016, pointing out that there was nothing objectionable as to the course, conduct and competence of the petitioner. Thereafter, the remarks were furnished accordingly, by the District Judge, Thalassery vide letter dated 01.03.2016 and on receipt of the same, the District Collector, on the very same date, sent the recommendation to the Law Secretary. It was accordingly, that the Government issued Annexure-A6 G.O.(G.O. (MS)No.66/16/Law dated 08.04.2016) extending the term of the petitioner by a further period of three years w.e.f 12.04.2016. It is stated that the petitioner is continuing, based on the renewal as above.

4. While so, the petitioner came across Annexure-A7 communication dated 16.06.2016 issued by the Government/Law Secretary, addressed to all District Collectors of the State, referring to the earlier letter dated 30.05.2016 as to the proposed steps for preparation of a fresh panel of advocates to be appointed as District Government Pleaders in consultation with the District Judges concerned, duly complying with the procedure laid down in Rule 8(2) of the KGLO Rules, 1978 and requesting to expedite steps in the matter for submitting the panel. Apprehending termination of engagement of the petitioner, despite the renewal ordered by the Government as per Annexure-A6, just two months ago, he approached the Kerala Administrative Tribunal by filing the O.A., seeking to set aside Annexure-A7 and to declare that the petitioner/applicant was entitled to continue on the strength of Annexure -A6, for a further period of âthreeâ years from 12.04.2016. The claim was resisted from the part of the Government on various grounds, pointing out the merits and also that the O.A. itself was premature. After a detailed discussion, as to the facts, figures, relevant provisions of law and precedents, interference was declined and the O.A. was dismissed as per Ext.P1 order dated 29.06.2016, which made the petitioner to approach this Court by way of this Original Petition, challenging Ext.P1.

5. Heard Mr. Kaleeswaram Raj, the learned counsel appearing for the petitioner and Shri C.P.Sudhakara Prasad, the learned Advocate General appearing for the State/respondents, at length.

6. The petitioner contends that, going by the contents of Annexure A7, two steps are imminent to take place; firstly, termination of all the existing Government Pleaders âen-blocâ and secondly, preparation of a new panel, absolutely for no reason, but for sustaining the political will of the Government, i.e., to appoint persons of their choice, despite any instance of insinuation or misconduct on the part of the existing District Government Pleaders/Public Prosecutors, Addl. Government Pleaders/Addl. Public Prosecutors. It is stated that the challenge is mainly on two grounds, firstly that appointment of a Public Prosecutor/Addl. Public Prosecutor has necessarily to be in conformity with the mandate of Sections 24(4) or 24(5) of the Cr.P.C., which stands satisfied in the case of the petitioner and as such his engagement is not liable to be terminated. Thesecond contentionis that, Annexure-A7 proposes to pursue further steps for preparing a new panel in terms ofRule 8(2)(c)of KGLO Rules, which cannot be sustained, as the said rules have been virtually declared as ultra vires, being contrary to the mandate of Section 24(4) and 24(5) of the Cr.P.C., by a Division Bench of this Court as per the decision reported in

Omanakuttan Nair vs. State of Kerala, 2003 (1) KLT 226

7. The learned Counsel submitted that the validity of Rule 8(2) (c) of the KGLO Rules in the light of the above verdict of this Court was omitted to be considered by the Tribunal while dismissing the O.A.; holding that the relationship between the Government and a Government Pleader/Public Prosecutor was merely that of a private litigant with his lawyer and it is for the client to choose the lawyer to represent him. The learned Counsel points out that the idea and understanding is thoroughly wrong and misconceived, it being contrary to the law declared by the Apex Court in

Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

clearly holding that the relationship is something more, where an element of public function is also involved and that there cannot be any en- bloc termination, upon the change in political party running the Government. Reliance is also sought to be placed on the verdict passed by the Apex Court in

Harpal Singh Chauhan and others vs. State of U.P., AIR 1993 SC 2436

(paragraphs 11 and 14) and

State of Punjab and another vs.Brijeshwar Singh Chahal and another, (2016) 6 SCC 1

It is stated that the Government Pleader /Public Prosecutor is discharging a public function and as such, this should be reflected throughout the process of selection, appointment, renewal, etc., which essentially differs from an individual engaging his lawyer. The Tribunal has gone wrong in applying the lawyer-client relationship, to be the basis for non-suiting the petitioner. It is also pointed out that the reliance sought to be placed on Rule 17 of the KGLO Rules conferring power upon the Government to terminate the engagement even without any reason is not correct or sustainable. The learned Counsel adds that the Tribunal, though has adverted to some observations made by the Apex Court in

Kumari Shrilekha Vidyarthi and others vs. State of U.P. And others, AIR 1991 SC 537

to justify the findings and reasoning, the said observations of the Supreme Court are not the dictum and that the dictum is something else, which stands in favour of the petitioner.

8. The learned Counsel also points out that the entire process of preparation of âpanelâ as such, is not necessary or contemplated in so far as the petitioner is concerned as it was only a case of ârenewalâ and that the proven credentials are already forming part of the records; more so when âno objectionâ was raised from the concerned Court to which the petitioner was attached as Addl. Government Pleader/Addl. Public Prosecutor or from the part of the District and Sessions Judge or by the District Collector, who forwarded the recommendation to the Government, leading to renewal of the term as per Annexure-A6. As such, it is not a fresh selection, but an extension of the term originally granted for which, power, of course is vested with the Government under Rule 9 of theKGLO Rules. The learned counsel further submitted that the reliance placed by the Tribunal upon the verdict reported in

Mohammed Ashraff vs. State of Kerala, 1991 (2) KLT 818 :1991 KHC 513

is not applicable to the case in hand, by virtue of difference in the facts and circumstances. Same is the position, with regard to the factual situation in the verdicts of the Supreme Court in

State of UP. and others vs. U.P. State Law Officers Association and others, AIR 1994 SC 1654

9. In so far as there is no reference in Annexure-A7 to the mandatory requirements of âconsultationâ with the Sessions Judge as envisaged under Section 24(4) and 24(5) of the Code of Criminal Procedure, but for confining it to Rule 8(2) of the KGLO Rules, it is stated as bad in all respects. Section 24(4) and 24(5) of the Cr.P.C. envisages âpre-decisional consultationâ with the Sessions Judge. Rule 8 of the KGLO Rules refers only to a âpost-decisional consultationâ, which is not enough and hence the provision has been declared as ultra vires in

Omanakuttan Nair vs. State of Kerala, 2003 (1) KLT 226

Having renewed the tenure as per Annexure-A6 (having taken the decision with full application of mind), the Government cannot be heard to say that it is not bound by the same, thus bringing the rule of estoppel as well, submitted the learned Counsel, also seeking to draw support from the ruling of the Apex Court in

10. The learned Advocate General appearing for the respondents submitted that the challenge raised by the petitioner against Annexure A7 is neither maintainable in law nor on facts; besides the fact that it is too âprematureâ and no cause of action has actually arisen for the petitioner, as on date. It is further pointed out that the post of Addl. District Government Pleader/Addl.Public Prosecutor isnot a civil postunder the Government coming within the purview of Kerala Public Service Act, unlike the post of âAssistant Public Prosecutorâ and this being the position, the O.A. preferred before the Tribunal itself was not maintainable by virtue of Section 15 of the Administrative Tribunalâs Act.

11. It is pointed out by the learned Advocate General that, in so far as the selection and appointment of Government Pleader/Public Prosecutor is concerned, the âtrust and confidenceâ of the Government is supreme and there is no vested right for anybody to get appointed or to continue to hold the office. The process of âconsultationâ with the District and Sessions Judge is to weed out the undesirable elements. Who is the better person to be selected and appointed among the eligible hands, is a matter of choice of the Government and not of anybody else. The verdicts passed by the Apex Court in

Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

and the subsequent Bench inHarpal Singh Chauhanâs case (cited supra) have been considered and the legal position has been made explicitly clear as per the subsequent verdict of a âThree Member Benchâ of the Supreme Court in

State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

which has been followed by various Division Benches of this Court upholding the stand taken by the Government and repelling the contrary stand taken by the litigants as per the judgment in

Francis Jude Netto vs. State of Kerala, 2007 (4) KLT 210

and W.A.No.458 of 2007. The learned Advocate General also points out that in the course of âconsultationâ, it is quite open for the concerned District and Sessions Judge to suggest the names of any eligible hand and if the Government reposes âtrust and confidenceâ in the said person, on enquiry, he could be considered. But merely for the reason that such a person has been suggested by the learned District and Sessions Judge, he cannot have any vested right to get selected and appointed. It is brought to the notice of this Court that the verdict passed by the Division Bench inOmanakuttanâs case (cited supra) was sought to be challenged from the part of the State Government before the Apex Court by filing SLP.Nos. 22777 to 22774 of 2002, which however came to be dismissed on 22.04.2012. The position in the said case was considered by the subsequent Division Bench and after making a reference to the law declared by the Apex Court in

State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

the position was answered in favour of the Government as per the verdict reported in2007 (4) KLT 210(cited supra). Even though an interim stay was granted by the Apex Court in respect of the verdict passed inOmanakuttanâs case, the law already declared had to be followed by virtue of the ruling of the Apex Court in

Abdu Rahiman vs. District Collector, Malappuram,2009(4) KLT 485

It was accordingly, that the matter was considered, leading to the decision in

Francis Jude Netto vs. State of Kerala, 2007 (4) KLT 210

12. The learned Advocate General submitted that the mere eligibility of persons to be considered for appointment as Addl. District Government Pleader/Addl. Public Prosecutor or that such persons was selected and appointed at a given point of time, by itself is not a relevant criterion to get appointed or re-appointed as a matter of course. It need not be a case of loss of confidence as well; and the person to be identified shall be with reference to the honesty, knowledge, competence, credibility and above all, upon whom more trust and confidence can be reposed by the Government for conducting the cases of the Government in the best interest of the Government. This being the position, it is quite open for the Government to have the engagement terminated at any time, without assigning any reason as stipulated in Rule 17 of the KGLO Rules and the relationship is as between any other client and his lawyer, of course with an element of public duty which is sufficiently protected by virtue of the safeguard provided in the Rules, i.e., âconsultationâ to be made with the District and Sessions Judge.

13. Mr. Kaleeswaram Raj, the learned Counsel for the petitioner submitted in reply, that the verdict passed by the âThree Member Benchâ of the Apex Court in

State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

was on a totally different factual context. It is stated that the position of law laid down by a âTwo member Benchâ of the Apex Court in

Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

has not been altered by the subsequent âThree Member Benchâ in

State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

and both the cases were decided in different angles. The law declared by the Supreme Court in

Kumari Shrilekha Vidyarthi and others vs. State of U.P. And others, AIR 1991 SC 537

has not been overruled by the Three Member Bench in

State of U.P. And another vs. Johri Mal, (2004) 4 SCC 714

though the law declared in the former case has not been reiterated in so many words.

14. Similarly, the verdict rendered by the Supreme Court in

Harpal Singh Chauhan and others vs. State of U.P., AIR 1993 SC 2436

has not been overruled in the âThree Member Benchâ decision in

State of U.P. and another vs. Johri Mal, (2004)4 SCC 714

Further, there is an observation by the Three Member Bench to the effect that the Bench did not agree with the amendment brought about to get over the dictum in

Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

15. Before proceeding to analyse the law declared by the Apex Court and this Court, as referred to above, it is necessary to consider the projected cause of action as given in Annexure-A7, which reads as follows:

âAttention is invited to the reference cited. It was requested to furnish a fresh panel of Advocates to be appointed as District Government Pleaders in consultation with the District Judges concerned, duly complying the procedure laid down in rule 8(2) of KGLO Rules, 1978, but the same has not been furnished yet. Hence you are requested to expedite the matter and submit the panel at the earliest.â

Obviously, Annexure A7 only refers to preparation of a fresh panel for appointment of Government Pleaders in various districts in Kerala, in consultation with the District and Sessions Judges and duly complying the procedure laid down in Rule 8(2) of the KGLO Rules. If it is strictly confined to appointment of Government Pleaders/Addl. Government Pleaders (not connected with appointment of Public Prosecutors/Addl.Public Prosecutors) Sec.24(4) and (5) of the Cr.P.C. will not get attracted. In fact, the same is governed by Rule 8(2) of the KGLO Rules as it stands. The learned counsel for the petitioner fairly concedes that, there is no âmaster and servantâ relationship between the Government Pleader and Public Prosecutor or the Addl. Government Pleader and Addl. Public Prosecutor. According to the learned counsel, it stands on a higher plane than mere âclient- lawyer relationshipâ, by virtue of the public duty cast upon the Government Pleader/Public Prosecutor to be discharged.

16. In so far as the jurisdiction of the Tribunal to deal with the matter in terms of the Administrative Tribunalâs Act is concerned, it has to be with reference to the mandate of Section 15, which reads as follows:

15. Jurisdiction, powers and authority of State Administrative Tribunals

(1) Save as otherwise expressly provided, in this Act, the Administrative Tribunal for a State -shall exercise, on and from the appointed day, all the jurisdiction, powers and authority exercisable immediately before that day by all courts (except the Supreme Court a[xx]) in relation to-

(a) recruitment, and matters concerning recruitment, to any civil service of the State or to any civil post under the State;

(b) all service matters concerning a person [not being a person referred to in clause (c) of this sub-section or a member, person or civilian. referred to in clause (b) of sub-section (1) of section 14] appointed to any civil service of the State or any civil post under the State and pertaining to the service of such person in connection with the affairs of the State or of any local or other authority under the control of the State Government or of any corporation b[or society] owned or controlled by the State Government;

(c) all service matters pertaining to service in connection with the affairs of the State concerning a person appointed to any service or post referred to in clause (b), being a person whose services have been placed by any such local or other authority or corporation b[or society] or other body as is controlled or owned by the State Government, at the disposal of the State Government for such appointment.

(2) The State Government may, by notification, apply with effect from such date as may be specified in the notification the provisions of sub-section (3) to local or other authorities and, corporations b[or societies] controlled or owned by the State Government ;Provided that if the State Government considers it expedient so to do for the purpose of facilitating transition to the scheme as envisaged by this Act, different dates may be so specified under this sub-section in respect of different classes of, or different categories under any class of, local or other authorities or corporations b[or societies].

(3) Save as otherwise expressly provided in this Act, the Administrative Tribunal for a State shall also exercise, on and from the date with effect from which the provisions of this subsection apply to any local or other authority or corporation b [or society], all the jurisdiction, powers and authority exercisable immediately before that date by all courts (except the Supreme Court a[xx]) in relation to â

(a) recruitment, and matters concerning recruitment to any service or post in connection with the affairs of such local or other authority or corporation b[or society]; and

(b) all service matters concerning a person [other than a person referred to in clause (b) of sub-section (1) of this section or a member, person or civilian referred to in clause (b) of subsection (1) of section 14] appointed to any service or post in connection with the affairs of such local or other authority or corporation b[or society] and pertaining to the service of such person in connection with such affairs.

(4) For the removal of doubts, it is hereby declared that the jurisdiction, powers and authority of the Administrative Tribunal for a State shall not extend to, or be exercisable in relation to, any matter in relation to which the jurisdiction, powers and authority of the Central Administrative Tribunal extends or is exercisable.

17. The circumstances, under which a post can be considered as a âcivil postâ (with reference to the appointment of an Asst. Public Prosecutor under the Government) have been considered and explained by the Apex court in the decision reported in

Samarendra Das v. State of W.B. and others,AIR 2004 SC 2924

holding that the post of âAssistant Public Prosecutorâ is a civil post under the State in terms of S. 15 of the Administrative Tribunals Act, 1985. The test/circumstances highlighted by the Apex Court in the said decision are conspicuously absent in so far as the selection and appointment of District Government Pleader/Public Prosecutor is concerned and it cannot be held as a âcivil postâ under the Government, involving âmaster and servantâ relationship. This being the position, this Court finds considerable force in the submission made by the learned Advocate General, that the O.A. itself was not maintainable before the Tribunal and the grievance, if any, could have been considered only by this Court, invoking the power and jurisdiction under Article 226 of the Constitution of India.

18. Appointment of Law Officers in the State are governed by KGLO Rules. Rules 4 to 6 deal with appointment of such officers in the High Court of Kerala, whereas Rules 8 to 10 deal with appointment of such officers in the District Court/Addl.District Court/Subordinate Court. Rule 8 deals with the method of appointment of Government Law Officers in the District Court, Additional District Court and Sub Court centres, whereas Rule 17 deals with Termination of Appointment. Rules 8 and 17 are extracted below for convenience of reference:

8. Method of appointment of Government Law Officers at District Court, Additional District Court and Sub Court Centres

(1) Government Law Officer at a District Court Centre, Additional District Court Centre or Sub Court Centre shall be appointed by the Government from a panel of names of Advocates furnished by the District Collector concerned. Provided that the Government shall try to give adequate representation to members of Scheduled Caste/Scheduled Tribe Communities in the matter of appointment of Government Law Officers.

(2) For preparing the panel, the District Collector shall follow the following procedure, namely-

(a) A list of advocates from the roll of advocates of the Bar Council of Kerala having at least seven years of practice in the Bar and who having regard to their qualification, experience, integrity, reliability, reputation and character and antecedents, are , in the opinion of the District Collector, fit to be appointed as a Government Law Officer shall be prepared and sent to the concerned District and Sessions Judge for consultation. The District and Sessions Judge shall return the list with his remarks within ten clear days from the date of receipt of the same by him. Provided that in preparing the list it shall not be necessary to advertise the vacancies or invite applications for the appointment.

(b) After the expiry of the time limit mentioned in Clause (a) for return of the list from the District and Sessions Judge the District Collector shall prepare the panel of advocates based on the list forwarded by him to the District and Sessions Judge under the said clause.

(c) In preparing the panel, the District Collector shall not include the name of any Advocate whose name was not included in the list prepared by him under clause (a) or whose name was specifically disapproved by the District and Sessions Judge on specific grounds.

(d) The character and antecedents of all persons included in the panel shall be got verified through the concerned Superintendent of Police.

Provided that if members from the Scheduled Caste, Scheduled Tribe Community are qualified to be appointed as Government Law Officer, the panel shall contain at least the name of one member from such community.â

17. Termination of appointment

(1) Notwithstanding anything contained in these rules, the Government may terminate the appointment of any Government Law Officer other than a Special Government Pleader or Special Public Prosecutor, at any time before the expiry of the term of his appointment without assigning any reasons therefor.

Provided that before such termination he shall be given one monthâs notice or shall be paid one monthâs salary in lieu of such notice. â

The Rule position is quite categoric, that the âpanelâ has to be prepared by the District Collector in consultation with the concerned District and Sessions Judge and nobody can be included in such list, whose name has been specifically disapproved by the District Judge on specific grounds. It is further provided that, the character and antecedents of the persons included in the panel shall be got verified through the Superintendent of Police.

19. Rule 9 of the Rules deals with the term of appointment of Government Law Officers in the District Court, Additional District Court and Sub Court centres, which reads as follows:

9. Term of appointment of Government Law Officers in District Court, Additional District Court and Sub Court Centres

The term of appointment of a person appointed as District Government Pleader and Public Prosecutor or Additional Government Pleader and Additional Public Prosecutor , where the two posts are combined or of a person appointed as District Government Pleader or Public Prosecutor or Additional Government Pleader or Additional Public Prosecutor, where the two posts are separate, shall be for a period of three years. The Government may re-appoint any such person for further periods not exceeding three years at a time.

Provided that the services of any such person shall automatically terminate on his attaining the age of sixty years.

From the above rule, it is evident that the initial term of appointment shall be for a period of âthreeâ years with liberty/option for the Government to have him re-appointed for a further period, not exceeding three years at a time, subject to the proviso that services of any such person shall automatically terminate on his attaining the age of sixty years.

20. Rule 17 confers authority upon the Government to terminate engagement of any Govt. Law Officer other than a Special Government Pleader or Special Public Prosecutor at any time before the expiry of the term of his appointment without assigning any reasons. This obviously is in view of the fact that there is no âmasteremployeeâ relationship and the engagement of the persons identified and appointed is based on thetrust and confidence. Nothing prevents the Government in identifying persons withmore knowledge, competence, credibility, honesty, integrityand such other traits, upon whommore confidencecan be reposed, though there may not be any stigma on the part of the person who was already conducting the cases on behalf of the Government. At the same time, such identification has to be in compliance with the requirements as per the KGLO Rules and if it pertains to appointment of Prosecutors/Public Prosecutors, it definitely has to be in compliance with the mandate of Section 24(4) and (5) of the Cr.P.C. For convenience of reference, Section 24 of the Cr.P.C. is extracted below:

24. Public Prosecutors

(1) For every High Court, the Central Government or the State Government shall, after consultation with the High Court,appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors, for conducting in such Court, any prosecution, appeal or other proceeding on behalf of the Central Government or State Government, as the case may be.

(2) The Central Government may appoint one or more Public Prosecutors for the purpose of conducting any case or class of cases in any district, or local area.

(3) For every district, the State Government shall appoint a Public Prosecutor and may also appoint one or more Additional Public Prosecutors for the district:

Provided that the Public Prosecutor or Additional Public Prosecutor appointed for one district may be appointed also to be a Public Prosecutor or an Additional Public Prosecutor, as the case may be, for another district.

(4) The District Magistrate shall, in consultation with the Sessions Judge, prepare a panel of names of persons, who are, in his opinion fit to be appointed as Public Prosecutors or Additional Public Prosecutors for the district.

(5) No person shall be appointed by the State Government as the Public Prosecutor or Additional Public Prosecutor for the district unless his name appears in the panel of names prepared by the District Magistrate under sub-section (4).

The point to be considered is whether there is anything objectionable from the part of the Government in having issued Annexure-A7 and in proceeding with further steps in identifying and appointing the law officers to conduct the cases of the Government in the District/Subordinate courts. As mentioned already, much reliance has been placed upon the verdicts passed by the Apex Court in

Kumari Shrilekha Vidyarthi and others vs. State of U.P. and others, AIR 1991 SC 537

and

Harpal Singh Chauhan and others vs. State of U.P., AIR 1993 SC 2436

from the part of the petitioner, to contend that interference with Annexure-A7 is warranted.

21. InSrilekha Vidyarthiâs case, the Apex Court was considering the en-bloc removal of the Government Counsel (Civil, Criminal and Revenue) in all the districts of the State of U.P. w.e.f. 28.02.1990 and the directions to prepare a fresh panel to make appointments in place of the existing incumbents, as per the Circular dated 06.02.1990. Two questions were considered as noted in paragraph 4 of the verdict, i.e., whether the impugned Circular was amenable to judicial review and if so, was it liable to be quashed as violative of Art.14 of the Constitution of India , being arbitrary? As observed by the Apex Court in paragraph 6 of the said verdict, the challenge raised before the Court was not solely by individuals who were adversely affected by the Circular, but also by the Association of the District Government Counsel and hence it was held that, it was in a ârepresentative capacityâ unlike the instant case, where the challenge is raised by the petitioner alone. As observed in paragraph 7, the Apex Court held that, it was not necessary to consider the exact nature of appointment as the point being examined was whether the Circular was bad for arbitrariness, even assuming the security of tenure of the appointees to be minimal as contended by the State. Various contentions were raised from the part of the State that, it was having all prerogative to select and appoint the Government Law Officers of its choice; that their engagement could be terminated at will at any time without assigning any reason; that such engagement was purely contractual; that it was a matter of âtrust and confidenceâ between the Government and the law Officers and further that, it was purely something like a private litigant and his lawyer and nothing more than that.

22. The Apex Court observed with reference to the relevant provisions of law regarding appointment (Legal Remembrancerâs Manual, 1975) and Section 24 of the Cr.P.C. that the Law Officer was holding a âpublic officeâ, though not a post under the Government. Various provisions in the Legal Remembrancerâs Manual, 1975 were also adverted to. Paragraph 7.03 of the Manual provided for applications and qualifications for appointment to the above offices or posts. The District Officer was required to consider all the applications received, in consultation with the District Judge, giving due weight to the claim of the existing incumbents, if any and to submit in the order of preference the names of legal practitioners, together with the opinion of the District Judge on the suitability and merits of each candidate, which process of selection expressly involves the District Judges and gives due weight to his opinion, for the obvious reason that the District Judge was expected to know best the comparative merits of the candidates for such appointments.

23. Paragraph 7.06 of the Manual provides for appointment; Paragraph 7.08 provides for renewal of the term; and paragraph 7.09 stipulated for maintenance of character roll of the appointees. To have a proper understanding, the above rules are extracted below:

7.06. Appointment and renewal

(1) The legal practitioner finally selected by the Government may be appointed District Government Counsel for one year from the date of his taking over charge.

(2) At the end of the aforesaid period, the District Officer after consulting the District Judge shall submit a report on his work and conduct to the Legal Remembrancer together with the statement of work done in Form No.9. Should his work or conduct be found to be unsatisfactory the matter shall be reported to the Government for orders. If the report in respect of his work and conduct is satisfactory, he may be furnished with a deed of engagement in Form No. 1 for a term not exceeding three years. On his first engagement a copy of Form No. 2 shall be supplied to him and he shall complete and return it to the Legal Remembrancer for record.

(3) The appointment of any legal practitioner as a District Government Counsel is only professional engagement terminable at will on either side and is not appointment to a post under the Government. Accordingly the Government reserves the power to terminate the appointment of any District Government Counsel at any time without assigning any cause.

7.08. Renewal of term

(1) at least three months before the expiry of the term of a District Government Counsel, the District Officer shall after consulting the District Judge and considering his past record of work, conduct and age, report to the Legal Remembrancer, together with the statement of work done by him in Form No. 9 whether in his opinion the term of appointment of such counsel should be renewed or not. A copy of the opinion of the District Judge should also be sent along with the recommendations of the District Officer.

(2) Where recommendation for the extension of the term of a District Government Counsel is made for a specified period only, the reasons therefore shall also be stated by the District Officer.

(3) While forwarding his recommendation for renewal of the term of a District Government Counsel â

(i) the District Judge shall give an estimate of the quality of the Counselâs work from the Judicial standpoint, keeping in view the different aspects of a lawyerâs capacity as it is manifested before him in conducting State cases, and specially his professional conduct;

(ii) the District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct.

(4) If the Government agrees, with the recommendations of the District Officer for the renewal of the term of the Government Counsel, it may pass orders for re-appointing him for a period not exceeding three years.

(5) If the Government decides not to reappoint a Government Counsel, the Legal Remembrancer may call upon the District Officer to forward fresh recommendations in the manner laid down in para 7.03

(6) The procedure prescribed in this para shall be followed on the expiry of every successive period of renewed appointment of a District Government Counsel.

Note âThe renewal beyond 60 years of age shall depend upon continuous good work sound integrity and physical fitness of the Counsel.

7.09. Character roll

(1) The District Officer and the District Judge shall, before the end of every year and also while leaving the district on transfer, place on record his opinion on the capacity and work of the District Government Counsel. The District Judge shall before recording such opinion obtain a report about the work and conduct of the District Government Counsel from the presiding officers of the courts, where they are generally required to practise. Similarly, the District Officer shall before recording such opinion obtain a report from the Superintendent of Police regarding the counselâs capacity for prosecution of cases and assistance rendered to the investigating agency. The record, which shall be confidential, shall be maintained by the District Officer. Every adverse entry shall be communicated to the District Government Counsel concerned by the District Officer, with the prior approval of the Government.

(2) The character roll of every District Government Counsel shall also be maintained by the Government in Judicial (Legal Advice) Section. For this purpose, the District Officer shall forward to the Legal Remembrancer a copy of all the confidential reports, recorded by him and the District Judge on the work and conduct of the District Government Counsel by the first week of May every year for being incorporated in the character roll, maintained by the Government.

(3) The District Officer shall forward a copy of all the confidential reports, referred to in para 7.09(2) in respect of District Government Counsel (Criminal) to Home (Police) Section of Secretariat also for information.

(4) Any shortcomings on the part of the District Government Counsel shall at once be brought to the notice of the Legal Remembrancer.â

24. Going by the mandate of paragraph 7.06 of the Manual, the initial appointment could only be for a period of âone yearâ and at the end of the aforesaid period, a report had to be submitted by the District Officer after consultation with the District Judge on his work and conduct to the Legal Remembrancer, together with the statement of work done in Form No.9. If the work was found to be unsatisfactory, it was to be reported to the Government for orders and if it was satisfactory, the District Government Counsel could be given a deed of engagement in Form No.1 for a term not exceeding three years. Coming to the renewal of the term as provided in paragraph 7.08 of the Manual, three months before the expiry of the term of a District Government Counsel, the District Officer (after consultation with the District Judge and considering his past record of work, conduct and age)was to report to the Legal Remembrancer together with the statement of work done by him in Form No.9, showing whether in his opinion, the term of appointment of such counsel should be renewed or not. The opinion of the District Judge should also be sent along with the said recommendation. While forwarding such recommendation, the District Judge shall give an estimate of the quality of the then Counselâs work from the judicial standpoint, keeping in view the different aspects of a lawyerâs capacity as it is manifested before him in conducting State cases and specially his professional conduct. The District Officer shall give his report about the suitability of the District Government Counsel from the administrative point of view, his public reputation in general, his character, integrity and professional conduct, after consultation. If the Government agreed with the above recommendations, the term could be renewed for a period not exceeding three years and if not, the District Officer could be required to submit fresh recommendations in terms of paragraph 7.03 of the Manual.

25. As evident from 7.09 of the Manual, it is obligatory for the District Officer and the District Judge concerned,to place on record his opinion on the capacity and work of the Government Counsel before the end of âevery yearâ and also while leaving the district on transfer. Before recording opinion by the District Judge, it is necessary to obtain a report about the work and conduct of the District Government Counsel from the Presiding Officers of the Courts where he is generally required to practise and in the case of recording opinion by the District Officer, he shall obtain a report of the Superintendent of Police regarding the counselâs capacity for conducting prosecution of cases and as to the assistance rendered to the investigating agencies. It is also stipulated that,a record shall be maintainedby the District Officer and every adverse entry shall be communicated to the District Government Counsel concerned with the prior approval of the Government. Further,a character roll of the District Government Counsel is to be maintainedby the Government in Judicial (Legal Advice) Section and for this purpose, it is for the District Officer to forward to the Legal Remembrancer, a copy of all the confidential reports recorded by him and the District Judge on the work and conduct of the District Government Counsel, by the first week of May, every year for being incorporated in the character roll maintained by the Government. It was with reference to the above crystal-clear provisions of law, that an observation was made by the Apex Court inparagraph 11of theSrilekha Vidyarthiâs case that, initial appointment is for a period ofone year, during which the work and conduct of the appointee is watched to adjudge his suitability, calling for a report to be submitted by the District Officer, after consultation with the District Judge and on being found satisfactory, to have the engagement extended by three years.

26. The Apex Court observed inparagraph 12of the verdict inSrilekha Vidyarthiâs case that the above provisions clearly revealed that the appointments were to be made, and ordinarily renewed, on objective assessment of suitability of the person basedon the opinion of the District Officer and District Judge and character roll is maintained for keeping a record of the suitability of the appointeeto enable an objective assessment for the purpose of his continuance as a Law Officer in the District. By virtue of Clause (3) of para 7.06 in the Manual, private practice and participation in political activities were barred in so far as the Government counsel was concerned. It was in the said circumstance, that a finding was rendered that there was obviously an âelement of continuityâ of the appointment; unless the appointee was found to be unsuitable either by his own work, conduct or age or in comparison with any other suitable candidate available at the place of appointment. Suitability of the appointee being the prime criterion for any such appointment, it was observed by the Apex Court that âappointment of the best amongst the availableâ, was the object sought to be achieved by the above provisions, which, even otherwise should be of paramount consideration in discharge of the Governmental function aimed at promoting public interest. It was in the above background, that the power to terminate the engagement, vested with the Government, âwithout assigning any reasonâ was analysed, holding that the course pursued by the Government to terminate the engagement of all the counsel by one stroke, as per the Circular dated 06.02.1990 was totally arbitrary and was without any regard to the scheme of the âManualâ regarding engagement and renewal of the term.

27. Coming to the case in hand, none of such provisions as discussed by the Apex Court inSrilekha Vidyarthiâs case as to the monitoring/watching of the work of the Government Counsel/Public Prosecutor does exist in the KGLO Rules available in Kerala and there is no record as to any work study, character roll or such other vital aspect as contained in the Legal Remembrancer Manual applicable to the State of U.P. Similarly, when the engagement in U.P. is initially for a period of âoneâ year, extendable by a further period of âthreeâ years (based on the performance and records), it is for a period of âthree yearsâ in Kerala, right from the date of engagement, of course with liberty to the Government to terminate such engagement without assigning any reason. There is an ocean of difference between the scheme of the provisions between these two States and as such, the idea and understanding of the petitioner that his case squarely comes within the purview ofSrilekha Vidyarthiâs case, is thoroughly wrong and misconceived.

28. There is no doubt or dispute that every State action has to be transparent and should satisfy the test of reasonableness, even if it be a contractual matter and that it shall never be arbitrary, as held by the Supreme Court in

But the result of the test of arbitrariness as revealed inSrilekha Vidyarthiâs case in the light of the relevant provisions of law, discussed as above, as applicable to the State of U.P, is not brought about in so far as the engagement in Kerala is concerned.

29. As mentioned above, the case projected before the Supreme Court inSrilekha Vidyarthiâs case was also in a representative capacity having preferred by the Association of Government Pleaders; whereas in the present case, only individual grievance is raised, that too on the basis of a premature cause of action, apprehending adverse steps pursuant to Annexure-A7. What the further step would be, after collecting the data/particulars pursuant to Annexure-A7 in respect of the petitioner, is still to be known. It is always open for the Government to consider the matter individually and pass appropriate orders in accordance with law. In so far as the exercise is done in conformity with the relevant provisions of the KGLO Rules, read in the light of the mandate of Section 24 (4) and (5) of the Cr.P.C. (when it pertains to the appointment of Public Prosecutors/Addl. Public Prosecutors), the proceedings cannot be said as tainted in any manner. Unlike the position in the State of U.P., (where a continuity of engagement is envisaged in the relevant rules/provisions in the Manual, but for elimination of unsuitable hands based on clear cut records), no such continuity is envisaged anywhere in the Rules applicable in Kerala and even in the case of reengagement, it is as good as a âfresh appointmentâ and nothing more.

30. The scope of the verdict passed inSrilekha Vidyarthiâs case had come up for consideration before a Division Bench of this Court in

Mohammed Ashraff vs. State of Kerala, 1991 (2) KLT 818

It was a case where the concerned writ petitioners, who were appointed as Government Pleaders in this Court for a period of three years were served with a notice just a few months after assumption of charge, proposing to terminate their engagement in terms of Rule 17 of the KGLO Rules. After hearing both the sides, the Bench observed that, out of 35 existing Government Pleaders, 15 had resigned pursuant to the change in the Ruling Front, who were running the Government and that the Government had permitted â4â Government Pleaders to continue, whereas notice was issued only to the remaining persons. The sanctity of the verdict passed by the Supreme Court inSrilekha Vidyarthiâs case, [where the relevant rules gave a right for renewal, unless something was shown against the existing incumbents], was also taken note of by the Bench in contrast to the Kerala Rules, where there was no vested right of renewal and each time, it was a âfresh appointmentâ and the Government had a right under Rule 17 to terminate the engagement even within the original term of appointment. This Court had also called for the relevant files and examined the same observing that there was nothing arbitrary on the part of the Government. It was held that the Government was free to have their case conducted through the lawyers on whom they reposed confidence and as a natural corollary, it was open for the Government to terminate their engagement, appointing persons who weresufficiently competent and on whom, the Government had sufficient trust and confidence. The verdict passed inSrilekha Vidyarthiâs case was accordingly distinguished and the challenge raised by the writ petitioners was repelled.

31. Validity of the step for termination of the existing counsel and for appointment of fresh Law Officers in the State of U.P. had come up for consideration again before the Apex Court inHarpal Singh Chauhanâs case (cited supra). The process was to be governed by the provisions of the âManualâ, already extracted herein before. On expiry of the tenure of the concerned Law Officers, in the course of further proceedings, the District Judge had prepared two Lists-List A and List B. In List A, the District Judge mentioned the names of the law officers whose work and conduct were approved for extension of their term as Government Counsel, whereas in List B, it contained the names of the remaining Counsel, who were shown as âaverage lawyersâ. Despite the receipt of the lists, the District Magistrate did not forward the âList Aâ for renewal/extension of the term of the Government Counsel, since in the enquiry conducted by him, it was revealed that their credentials were not to the requisite extent. After hearing both the sides, the Apex Court deprecated the course pursued by the District Magistrate and observed that the expression âpanel of names of personsâ did not mean that some names were to be suggested by the Sessions Judge and some comments were to be made, in respect of those names suggested by the District Magistrate; without proper consultation and discussion over such names. âEffective consultationâ as contemplated under Section 24 of the Cr.P.C. was highlighted and observing that no such panel in terms of Section 24(4) was prepared in the said case, the proceedings were intercepted, giving appropriate directions to the District Magistrate to perform his statutory duty afresh in terms of section 24(4) of the Cr.P.C. and the relevant paragraphs of the concerned Manual which were not inconsistent with Section 24(4) of the Cr.P.C. The Apex Court also held inparagraph 15that inSrilekha Vidyarthiâs case, the Apex Court was not concerned with the question regarding the extension/renewal of the term of appointment of the Government counsel and the point considered was only with regard to arbitrariness in the step to terminate appointment of the Government counsel in different districts of the State by an omnibus order, even though those appointments were all individual. The Apex Court also observed in paragraph 16 that, merely because there was a provision for extension or renewal of the term, the same could not be claimed as a matter of right. Still further, the Apex Court made it clear in paragraph 19 that the members of the legal profession are required to maintain high standard of legal ethics and dignity of profession; and that they are not supposed to solicit work or seek mandamus from Courts in matters of professional engagements.

32. Appointment of Law Officers in the State of U.P., based on the provisions of the above Manual was again the subject matter of consideration before the Apex Court in

State of U.P. and others vs. U.P. State Law Officers Association and others, AIR 1994 SC 1654

The issue was with regard removal of 26 Law officers of the State, among the total of 64 Law Officers engaged in tune with the above provisions of the âManualâ. After a detailed scrutiny of the relevant provisions of the Manual and the dictum laid down inSrilekha Vidyarthiâs case, it was observed that appointment of two sets of officers, i.e., Government Counsel in the High Court, as involved in the said case, was entirely different from the norms for appointment of Government Counsel dealt with by the Apex Court inSrilekha Vidyarthiâs case where a different procedure was stipulated. It was accordingly held that, the ratio of the decision inSrilekha Vidyarthiâs case can hardly be applied to the appointment of Law Officers in the High Court whose appointment itself was arbitrary and was made in disregard to Article 14 of the Constitution as discussed therein. Accordingly, the interference made by the High Court with the orders passed by the Government/authorities, was set aside,holding that termination of appointment of the respondent Law Officers was valid and proper.

the issue that came up for consideration before the Apex Court relates to the right of the State Government to engage, disengage and renew the terms of its counsel and Law Officers in keeping with the need to best safe guard the public interest, monitory consideraion, suitablility of the incumbent and the interest of the Government as the client. In the said case, the party respondents were appointed on contract basis for the post of Assistant District Government Counsel (Criminal) in Ghazipur District of State of UP on 22.10.2001. As the terms of the appointment of the party respondents were upto 10.10.2002, the District Judge, Ghazipur, after being satisfied with the work and conduct of the respondents, had recommended to the District Magistrate, Ghazipur to get extended the terms by communication dated 31.7.2002. The District Magistrate, Ghazipur had recommended to the State Government to extend the term of appointment of the party respondents vide communication dated 31.7.2002. In the meanwhile, the posts of Assistant District Government Counsel (Criminal) on which the party respondents were working were advertised by the then District Magistrate, Ghazipur.

34. InRakesh Kumar Keshariâs case (cited supra), after taking note of the ratio in the Three-Judges Bench decision of the Apex Court in Johri Malâs case (supra) and also the Constitution Bench decision in

the Apex Court held that the decision of the State Government, not to accept the recommendation made by the District Magistrate, cannot be said to be arbitrary. The Apex Court has made it clear that Assistant District Government Counsel (Criminal) are not only Officers of the Court, but also the representatives of the State. They represent the interest of the general public before a Court of Law. The holders of the post have a public duty to perform. However, in the matter of engagement of Assistant District Government Counsel (Criminal) a concept of public office does not come into play. The choice is that of the Government and none can claim a right to be appointed because it is a position of great trust and confidence. Article 14 of the Constitution of India, however, in a given case, may be attracted to a limited extent if the State fails to discharge its public duty or acts in defiance, deviation and departure of the principles of law.

35. InRakesh Kumar Keshariâs case (cited supra), the Apex Court has also relied on an unreported decision inCivil Appeal No.3785/2003dated 11.11.2010. In the said judgment, the Apex Court reiterated that in the matter of engagement of a District Government Counsel, the concept of public office does not come into play. The choice of Counsel is for the Government and none can claim a right to be the counsel. There is no right for appointment of a Government Counsel. The Apex Court held further that the High Court, in exercise of its jurisidction under Article 226 of the Constitution of India, cannot compel the State to utilise the service of an Advocate, irrespective of its choice and it is for the State to select its own counsel. Paragraph 16 of the judgment of the Apex Court in Rakesh Kumar Keshariâs case, dealing with the unreported decision in Civil Appeal No.3785/2003 reads thus:

16. This position is again made clear in an unreported decision of this Court dated November 11, 2010 rendered in Civil Appeal No. 3785 of 2003. In the said case the State of U.P. by its order dated 03.06.2002 had rejected the request of the respondent Satyavrat Singh for renewal of the extension of his term as District Government Counsel (Criminal). The respondent had challenged the same in the Writ Petition. The Allahabad High Court had quashed the order 03.06.2002 refusing renewal of the term of the respondent as District Government Counsel (Criminal) and had directed the State Government to renew the term of the respondent as Government Counsel. While allowing the appeal filed by the State Government this Court has held as under:

âIt is difficult to discern as to how the High Court has upheld the unstatable proposition advanced by the respondent for extension of his term as Government Counsel. We wish to say no more in this matter since the subject matter that arises for our consideration is squarely covered by the decision of this Court in

This Court took the view that in the matter of engagement of a District Government Counsel, a concept of public office does not come into play. The choice of a counsel is for the Government and none can claim a right to be a counsel. There is no right for appointment of a Government Counsel.

The High Court has committed a grave error in renewing the appointment of the respondent as Government Counsel.

Needless to state that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India cannot compel the State to utilize the services of an advocate irrespective of its choice. It is for the State to select its own counsel.

The impugned order of the High Court is set aside. The appeal is accordingly, allowed.â

The principle laid down by the Apex Court inRakesh Kumar Keshariâs case (cited supra) was reiterated in

State of UP vs. Ajay Kumar Sharma, (2014) 3 SCC 568

36. In

State of Punjab and another vs. Brijeshwar Singh Chahal and another, (2016) 6 SCC 1

the Apex Court made it clear that appointment procedure of Government Counsel should be based on merit and should be fair, reasonable, transparent and nondiscriminatory. The question considered mainly was whether appointment of Law Officers by the State Government can be questioned or the process by which such appointments are made, can be assailed on the ground that the same are arbitrary, and hence, violative of the provisions of Article 14 of the Constitution of India. The questions considered have been detailed in paragraph No.7, which are extracted below:

â7. The following questions fall for our determination:

7.1 (i) Whether the States of Punjab and Haryana have made any realistic assessment of their requirement before making appointments of Law Officers.

7.2 (ii) Whether the States of Punjab and Haryana have formulated any scheme, policy, norms or standards for appointing Law Officers.

7.3 (iii) Whether appointment of Law Officers by the State Governments need to be made on a fair,reasonable, nondiscriminatory and objective basis; and

7.4 (iv)If answer to Questions (i),(ii) and (iii) are found in the negative, what is the way forward?

[Incidentally, we doubt whether any typographical mistake has crept in the question formulated at 7.4 (iv) in so far as it might have beenâif answer of qu estions (i) and (ii) are found in the negative and the answer to question (iii) is found in the affirmative .â]

37. In paragraph No.11, the answer to question (i) was found in thenegative. In paragraph No.8, answer to question (ii) was also answered in thenegative. In paragraph 42, answer to question (iii) was found in theaffirmative. The Apex Court summed up the propositions which are legally unexceptionable in paragraph 41, which are reproduced below:

â41. To sum up, the following propositions are legally unexceptionable:

41.1. The Government and so also all public bodies are trustees of the power vested in them.

41.2Discharge of the trust reposed in them in the best possible manner is their primary duty.

41.3The power to engage, employ or recruit servants, agents, advisors and representatives must like any other power be exercised in a fair, reasonable, non-discriminatory and objective manner.

41.4. The duty to act in a fair, reasonable, non-discriminatory and objective manner is a facet of the Rule of Law in a constitutional democracy like ours.

41.5An action that is arbitrary has no place in a polity governed by Rule of Law apart from being offensive to the equality clause guaranteed by Article 14 of the Constitution of India.

41.6Appointment of Government Counsel at the district level and equally so at the High Court level, is not just a professional engagement, but such appointments have a âpublic elementâ attached to them.

41.7. Appointment of Government Counsel must like the discharge of any other function by the Government and public bodies , be only in public interest unaffected by any political or other extraneous considerations.

41.8. The Government and public bodies are under an obligation to engage the most competent of the lawyers to represent them in the courts for it is only when those appointed are professionally competent that public interest can be protected in the courts.

41.9. The Government and public bodies are free to choose the method for selecting the best lawyers but any such selection and appointment process must demonstrate that a search for the meritorious was undertaken and that the process was unaffected by any extraneous considerations.

41.10. No lawyer has a right to be appointed as a State/Government Counsel or as Public Prosecutor at any level, nor is there any vested right to claim an extension in the term for which he/she is initially appointed. But all such candidates can offer themselves for appointment, reappointment or extension in which event their claims can and ought to be considered on their merit, uninfluenced by any political or other extraneous considerations.

41.11. Appointments made in an arbitrary fashion, without any transparent method of selection or for political considerations will be amenable to judicial review and liable to be quashed.

41.12. Judicial review of any such appointment will, however, be limited to examining whether the process is affected by any illegality, irregularity or perversity/irrationality. The Court exercising the power of judicial review will not sit in appeal to reassess the merit of the candidates, so long as the method of appointment adopted by the competent authority does not suffer from any infirmity. â

38. It was accordingly held in paragraph 48 that no lawyer has a right to be appointed as State Government Counsel or as Public Prosecutor at any level, nor does he have a vested right to claim extension of the term for which he/she was initially appointed. The Apex Court made it clear that eligible candidates can only offer themselves for any such appointment or extension, in which event, their claims can and ought to be considered on their merit uninfluenced by any political or other extraneous consideration; adding that such consideration shall, however, have to be in accordance with the norms settled for such appointments and on the basis of their inter-se merit, suitability and performance, if they have already worked as State Counsel and thatâs all.

39. It is true that a Division Bench of this Court inOmanakuttanâs case held that 1978 Rules as well as 2002 Rules (KGLO Rules)in so far as they deviate from the procedure prescribed for appointment of Public Prosecutors under Section 24 of the Cr.P.C., as interpreted by the Apex Court inChauhanâs case (cited supra) are bad and to that extent, they were declared to be invalid and unenforceable; categorically declaring that the procedure prescribed under Section 24(4) of the Cr.P.C. for appointment of Public Prosecutors is required to be followed in the manner as interpreted by the Supreme Court inChauhanâs case. (Paragraph 18). Since the rules as such is not struck off from the statute book, but for making a qualified declaration as above, with reference to theChauhanâs case, it is necessary to have a comparative analysis, more so in view of the subsequent ruling of the Larger Bench of the Supreme Court in

State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

virtually sustaining the State action, after a detailed deliberation of bothSrilekha Vidyarthiâs case andChauhanâs case.

40. In so far as the appointment of a Public Prosecutor and Addl.Public Prosecutor is concerned, there cannot be any doubt that it has to be effected from the panel prepared by the District Collectorin consultation with the District and Sessions Judgeand nobody other than a person included in the saidpanelshall be appointed by the Government. As such, preparation of the panel, after ascertaining the various traits such as qualification, experience, integrity, reliability, reputation and character and antecedents etc.,in consultation with the District and Sessions Judgeis an essential aspect involving paramount importance, by virtue of the public element involved in identifying and appointing a suitable person by the Government. To what extent the Rule deviates, if it does so, in the light of declaration of law by the Larger Bench of the Supreme Court as per the decision inJohri Malâs case (cited supra) forms a matter to be examined by this Court in the above circumstance.

41. Rule 8 of the âKGLO Rulesâ has already been extracted. It is very relevant to note that the Government, while formulating the Rules, has used different terminology, as it appears under Rule 8(2); consciously using the words âlistâ in sub-clause (a) and both the words âlistâ and âpanelâ in clauses (b) and (c) and confining to the term âpanelâ in sub-clause (d). In sub-section (4) and (5) of Section 24 of the Cr.P.C. only one terminology is used, i.e., the word âpanelâ to be prepared by the District Collector in consultation with the Sessions Judge. Why such different terminology is used in Rule 8(2) and is there any material difference, is the next question to be looked into.

42. As per sub-clause (a) of Rule 8(2), it is a mere âlistâ of advocates having â7â years of practice in the Bar and who are having the qualification, experience, integrity, reliability, reputation and character and antecedents, collected by the District Collector from the roll of Advocates of the Bar Council of Kerala, from appropriate sources. It is this âlistâ, that is forwarded by the District Collector to the Sessions Judge for consultation, making it obligatory for the District and Sessions Judge to offer his remarks within ten days. After expiry of the said period of ten days, the District Collector is vested with the duty to prepare the âpanelâ, based on the âlistâ forwarded by him to the District and Sessions Judge as specified in sub-clause (b), making it obligatory for the District Collector to ensure that no person, whose name was never shown in the âlistâ prepared by him under clause (a) or anybody, who was specifically disapproved by the District and Sessions Judge on specific grounds was included in the panel. The character and antecedents of the persons included in the said âpanelâ is still to be got verified through the concerned Superintendent of Police, as mentioned in sub-clause(d).

43. From the above, it is quite obvious that there is much difference in the terms âlistâ and âpanelâ . In the first place, as mentioned already, the âlistâ is only a collection of names by the District Collector, who has to satisfy the requirements and on finalising the process in consultation with the District and Session Judge, it becomes a âpanelâ, where the names of the persons who are specifically disapproved by the District and Sessions Judge are never to be included. The safeguard mentioned in sub clause (c), that such âpanelâ shall not contain the name of anybody who was not there in the âlistâ prepared by the District Collector under sub clause (a) is intended only to see that nobody from outside who has not undergone the scrutiny under the magnifying glass used by the District and Sessions Judge does secure a place in the âpanelâ to be prepared by the District Collector. This is only to assert the distinct role of the District and Sessions Judge to play in the preparation of âpanelâ with reference to the different traits and to ensure that no undesired element does get a chance to be enlisted in the âpanelâ, to be forwarded to the Government, making it open for the Government to appoint appropriate/competent persons from such âpanelâ. The difference between the two terms -âlistâ and âpanelâ as it appears under the different clauses of the above Rule, the sanctity attached to the same, the circumstances in connection with the preparation of such âlistâ and âpanelâ were not seen pointed out before the Division Bench while consideringOmanakuttanâs case and as a natural consequence, the same was not adverted to by the Bench as well.

44. In so far as sub-sections (4) and (5) of Section 24 of the Cr.P.C. are concerned, they clearly refer to the term âpanelâ and preparation of the same by the District Collector, in consultation with the District and Sessions Judge. What flows from the provision is as to the necessity to have âmandatory/effective consultationâ with the District and Sessions Judge as to the suitability of the person concerned. This alone has been explained and asserted by the Apex Court inChauhanâs case and there cannot be any dispute with regard to the same. As observed by the Apex Court, the expression âpanel of names of personsâ used in Section 24(4) and (5) do not mean that some names are to be suggested by the Sessions Judge and some comments are to be made in respect of those names by the District Magistrate, without proper consultation and discussion over such names. What has been asserted by the Supreme Court is that, consultation with the District and Sessions Judge is not an empty formality and that the statutory mandate requires âeffective and real consultationâ by the District Magistrate and the District and Sessions Judge; and if only this lapse is established, will there occur any infraction of the provisions of Section 24 of the Cr.P.C. It is in the said circumstance, that the Apex Court has made it clear inChauhanâs case that, if the District and Sessions Judge has affirmed the suitability of a person with regard to qualification, experience, integrity, reliability and reputation, it is only the suitability of such person for being appointed as Public Prosecutors âon administrative groundsâ, that can be decided by the District Magistrate.

45. As observed by the Apex Court in

S.P. Gupta and others vs. President of India and others, AIR 1982 SC 149

the term âconsultationâ could never amount to concurrence, but must amount to a meeting of minds. If the said statutory requirement is satisfied, it is not for this Court to intercept the proceedings, when the action pursued by the Government is supported by proper reasons. It is true that Rule 17 of the âKGLO Rulesâ enables the Government to terminate engagement of a Government Pleader/Public Prosecutor/Addl. Government Pleader and Addl. Public Prosecutor without assigning any reason. The meaning of the term âwithout assigning any reasonâ has been explained by the Supreme Court inSrilekha Vidyarthiâs case holding that it does not mean that the same amounts to non-existence of any reason, but that the reason which has necessarily to be there, however, does not require to be communicated to the party concerned.

46. With regard to the âreasonâ concerned, the submission made by the learned Advocate General is that the initial engagement was only for a period of âthreeâ years and having completed the said term, several other eligible hands came to be qualified, upon whom the Government can repose more confidence. Admittedly, âonce a Govt.Pleader/Public Prosecutor, always a Govt.Pleader/Public Prosecutorâ is not the rule and as made clear by the Supreme Court in the decision cited supra, there is no vested right for any Govt. Pleader/Public Prosecutor to get appointed or to get his term renewed as a matter of right; more so, when it is not a âcivil postâ and the terms and conditions of engagement are entirely different. Necessity to have existence of such reason was asserted by another Division Bench of this Court inW.A. No. 458 of 2007. After making reference to the various judgments of the Supreme Court including inSrilekha Viidyarthiâs case andJohri Malâs case and a judgment of this Court in W.A.No.1364 of 2004, the Bench held that valid reasons of course must exist and that the State has a right to choose the best talented people who enjoy their âTrust and confidenceâ more, which of course was a âpolicy decisionâ, with which no interference was possible. It was also held by the Bench in paragraph 20 of the said decision, that the verdict passed by the Apex Court inSrilekha Vidyarthiâs case has undergone a sea-change when a âThree memberâ Bench of the Apex Court rendered its verdict in

State of U.P. vs. Johri Mal, (2004)4 SCC 714

which was rendered highlighting the element of great âTrust and confidenceâ to be reposed by the Government in identifying the persons to be appointed in terms of Section 24(4) and (5) of the Cr.P.C. The observations in paragraph 23 of the verdict passed by this Court are relevant which are extracted below: (W.A.458 of 2007)

â23. As held by the Supreme Court in the matter of appointment of Counsel by the State, be it an Additional Government Pleader or an Additional Public Prosecutor, the choice is that of the Government. If the Government has decided not to continue the appointment of the Appellants, this court will not be justified in thrusting upon an unacceptable counsel on an unwilling client. We are conscious that in a matter like this, the scope of judicial review is limited and is available where the State has failed in discharging its public duty, where the State has departed from its legal policy, where the State has not complied with mandatory provisions of law and where the State has removed the Appellants dehors the statute. On an anxious consideration of the case in its entirety, we are satisfied that the Appellants have not made out a case for judicial review and that the Learned Single Judge has rightly dismissed the writ petition.â

We fully concur with the views expressed by the Bench as aforesaid.

47. Scope of the verdict passed by a Division Bench of this Court in2003 (1) KLT 226in relation to termination on expiry of the renewed term of the concerned Addl. District Government Pleader/Addl.Public Prosecutor came to be considered by another Division Bench of this Court in

Francis Jude Netto vs State of Kerala, 2007 (4) KLT 210

with reference to the law declared by the Apex Court in Chauhansâs case as well asJohri Malâs case (cited supra). After making a reference to Rule 8(2) of the âKGLO Rulesâ and the law declared by a âThree Member Benchâ of the Supreme Court inJohri Malâs case, it was held that the petitioner could not contend that he should be allowed to continue till the original term expired. Accordingly, the W.A. was dismissed, upholding the verdict passed by the learned single Judge rejecting the writ petition. In the said case, the process of consultation made by the District Magistrate with the concerned District and Sessions Judge was adverted to and the relevant portion of the letter written by the District and Sessions Judge to the District Collector was extracted in paragraph 6 of the judgment. However, observing that since the District and Sessions Judge had not âspecifically disapprovedâ the name of any particular person, giving any âspecific groundâ with reference to qualification, experience, integrity, reliability, reputation and character and antecedents, it was held open for the District Collector to have proceeded with the âpanelâ finalised, with liberty to the Government to have appointed competent hands from the âpanelâ. It was also made clear by the Bench that, if the District Judge reported that a candidate lacked experience, reputation, character, etc., that must be given due weight, rather than asking for specific grounds.

48. The very same Rules and the relevant provisions of Cr.P.C. as applicable to the State of U.P. (which was considered by the Apex Court in inSrilekha Vidyathisâs caseas well as inChauhanâscase) had come up for consideration before a âThree Member Benchâ of the Supreme Court inJohri Malâs case [(2004) 4 SCC 714). The State of U.P had amended sub-section (1) of Section 24 and deleted sub sections (4) to (6) of Section 24 (which mandated consultation with the High Court for appointment of Public Prosecutor for the High Court and for the District and Sessions Court), which was noted as an instance to overcome the decision of the Supreme Court inSrilekha Vidyarthiâscase . The Apex Court held that, it was pained to see that such an amendment was brought about only by the State of U.P. and that the Apex Court could not see any rationale in the said action. The State was alerted of the necessity to consult the District Judge with reference to the law declared in

Mundrika Prasad Singh vs. State of Bihar, (1979) 4 SCC 701

and it was asserted that the State should give primacy to the opinion of the District Judge. While holding that the course of action would demonstrate âfairness and reasonablenessâ of action, it was specifically held that, to a large extent the action of the State would not be dubbed as politically motivated or otherwise arbitrary, in so far as the rights and liberties were concerned. Observing that the relevant provision was a salutary one, the Court expected that the State of U.P. would either suitably amend the provision or despite deletion, the State shall consult the High Court with a view to ensure fairness in action. The challenge raised by the State of U.P. was upheld and the verdict passed by the concerned High Court was set aside, thus allowing the appeals.

49. The observations made by the Supreme Court in paragraphs 38, 40, 55 and 75 are relevant. The Bench observed in paragraph 38 that a distinction was to be borne in mind that, between the appointment of a Public Prosecutor or Additional Public Prosecutor on one hand and the Assistant Public Prosecutor, on the other. In so far as the latter category is concerned, they are employees of the State, holding âcivil postâ and their appointment is governed by the service rules framed by the concerned State. Unlike this, the appointment of Public Prosecutor is governed by the Code of Criminal Procedure and/or the executive instructions framed by the State governing the terms of their appointment. It is also added that the âprovisoâ appended to Article 309 of the Constitution of India is not applicable to their case and their appointment is a tenure appointment. The Bench observed that the Public Prosecutors retain the character of legal practitioners for all intent and purport. It was also observed that, though they are discharging public functions and certain statutory powers are conferred upon them, making their duties and functions as onerous, it would never mean that their conditions of appointment are governed by any statute or statutory rule. Observations made by the Supreme Court in paragraph 40 of the said verdict are very important and hence extracted below:

â40. So long as in appointing a counsel the procedures laid down under the Code of Criminal Procedure are followed and a reasonable or fair procedure is adopted, the Court will normally not interfere with the decision. The nature of the office held by a lawyer vis-a-vis the State being in the nature of professional engagements, the Courts are normally chary to over-turn any decision unless an exceptional case is made out. The question as to whether the State is satisfied with the performance of its counsel or not is primarily a matter between it and the counsel. The Code of Criminal Procedure does not speak of renewal or extension of tenure. The extension of tenure of public prosecutor or the district counsel should not be compared with the right of renewal under a licence or permit granted under a statute. The incumbent has no legal enforceable right as such. The action of the State in not renewing the tenure can be subjected to judicial scrutiny inter alia on the ground that the same is arbitrary. The Courts normally would not delve into the records with a view to ascertain as to what impelled the State not to renew the tenure of a public prosecutor or a district counsel. The jurisdiction of the Courts in a case of this nature would be to invoke the doctrine of âWednesbury Unreasonablenessâ as developed in

The Bench observed in paragraph 55 of the judgment that, appointment of District Government Counsel cannot be equated with the appointment of the High Court and the Supreme Court Judges; adding that a distinction must be made between professional engagement and a holder of high public office. The Bench also expressed the view that it was having reservations about some principles of law put forth by the Court inSrilekha Vidyarthiâs case, as discernible from paragraph 60 of the said verdict. However the legal position as to the engagement of the District Government Counsel was asserted in crystal-clear terms in paragraph 75, which reads as follows:

â75. In the matter of engagement of a District Government Counsel, however, a concept of public office does not come into play. However, it is true that in the matter of Counsel, the choice is that of the Government and none can claim a right to be appointed. That must necessarily be so because it is a position of great trust and confidence. The provision of Art. 14, however, will be attracted to a limited extent as the functionaries named in the Code of Criminal Procedure are public functionaries. They also have a public duty to perform. If the State fails to discharge its public duty or act in defiance, deviation and departure of the principles of law, the Court may interfere. The Court may also interfere when the legal policy laid down by the Government for the purpose of such appointments is departed from or mandatory provisions of law are not complied with. Judicial review can also be resorted to, if a holder of a public office is sought to be removed for reason dehors the statute.â

Further observations as contained in paragraphs 84 and 85 are also relevant and hence they too are reproduced below:

â84. Keeping in mind the aforementioned legal principles the question which arises for consideration in these appeals is the nature and extent of consultation a Collector is required to make with the District Judge.â

â85. The age-old tradition on the part of the States in appointing the District Government counsel on the basis of the recommendations of the District Collector in consultation with the District Judge is based on certain principles. Whereas the District Judge is supposed to know the merit,competence and capability of the concerned lawyers for discharging their duties, the District Magistrate is supposed to know their conduct outside the Court vis-a-vis the victims of offences, public officers, witnesses etc. The District Magistrate is also supposed to know about the conduct of the Government counsel as also their integrity.â

50. The premature termination of engagement of the Government Pleader in the High Court of Kerala was the subject matter of consideration in W.P.(C)No.19013 of 2004, wherein interference was declined and the writ petition was dismissed. On challenging the same by the aggrieved writ petitioner by way ofW.A.No.1364 of 2004, the Bench observed that there was absolutely no tenable ground to sustain the challenge and the appeal was dismissed as per judgment dated 17.03.2005. The observations as contained in paragraph 4 are very relevant , which is extracted below:

â4. An Advocate like the appellant belongs to a noble and learned profession. An Advocate cannot even submit an application seeking appointment as Government Pleader since the relationship between the Government and its counsel is qualitatively different from that of a master and servant. It is essentially a position which requires mutual confidence and trust. As such no member of the legal profession would (or should) cling on to a file or a client, the moment the client is seen to show the slightest dissatisfaction about the counselâs conduct or services. Going the rationale of the work which a Government Pleader has to perform, it is perhaps only proper that the Government have the power given to them to terminate the services without assigning any reason. The relationship between the Government and the Government Pleader is fiduciary in character and hence it is on a higher plane, in a different context and at a different level. Though it may be an office under the State, it is one which necessitates an extra ordinary degree of confidence on the part of the State. To compel the State to continue to deal with a Law Officer irrespective of other circumstances would be an arbitrary imposition of the services of a Law Officer on the Government and may also be contrary to public policy. The Government Pleader has to be a person in whom the Government has confidence.â

51. From the above, it is quite clear that the issue in question has to be considered in the light of Rule 8(2) of the âKGLO Rulesâ read in consonance with the mandate of sub-section (4) and (5) of Section 24(4) of the Cr.P.C. and of course in the light of the law declared by the Apex Court in

State of U.P. and another vs. Johri Mal, (2004) 4 SCC 714

52. The mandatory requirement under the provisions is to have a âreal and effective consultationâ with the District and Sessions Judge and nothing more. In the process of such selection, apart from pointing out the unsuitability of a person as contained in theâlistâsubmitted by the District Collector for being included in theâpanelâto be considered by the Government for appointment, it may be open for the District and Sessions Judge to point out the names of other competent hands as well, who could be included in thepanelto be prepared. Normally, this does not happen as it is not for the District and Sessions Judge to get appointed any particular person, either as Government Pleader/Public Prosecutor/Addl. Government Pleader/Addl. Public Prosecutor and the District and Sessions Judge is only concerned with the âprocess of selectionâ, to ensure that proper and competent person is selected and that no square peg is placed in a round hole. Even if any person is suggested or recommended by any District and Sessions Judge, it cannot be said that such person alone has to be appointed by the Government, unless no other person is there in the panel, who is not spoken against by the District and Sessions Judge and upon whom more confidence could be placed by the Government.

53. âAdvocacyâ is an art and it forms a conglomeration of various traits. Academic brilliance, by itself, may not be enough to conduct the cases effectively. Along with qualification/knowledge of relevant provisions of law, experience, honesty, intergrity, sincerity, goodwill, reputation, analytical skills, ability to present and project the picture in appropriate manner, etc., are matters of relevance. It is also a matter for the Government to consider upon whom, it could place âmore Trust and confidenceâ to conduct a case more effectively, once the given circumstances/requirements are satisfied by the persons included in theâpanelâ. As such, no interference is warranted with regard to the course proposed to be followed by the Government, more so when the challenge raised against Annexure A7 is premature, in so far as the petitioner is concerned.

54. It is also relevant to note in the light of the observations of the Supreme Court inChauhanâs caseand also inJohri Malâs case [(2004) 4 SCC 714], that Section 24 of the Cr.P.C. does not envisage any âextensionâ or ârenewalâ of the term of appointment. Whenever the original term is expired, it becomes a process of fresh selection and appointment, though it may involve re-appointment of the same person. This means, all the steps have to be started afresh and aâpanelâhas to be preparedin consultation with the District and Sessions Judge, ultimately leading to appointment of a competent person from theâpanelâ. Admittedly, the original term of appointment of the petitioner, as per Annexure A1, came to an end on 10.04.2016. Before the end of the said term, the petitioner submitted a request expressing willingness to continue, upon which the District Collector sought for the remarks of the District and Sessions Judge. As per Annexure-A4, the concerned Sub Judge/ Addl.Sessions Judge opined that there was nothing objectionable and that the term could be renewed/extended. The position was intimated by the District and Sessions Judge to the District Collector as per his letter dated 01.03.2016, based on which, recommendation was sent by the District Collector on the same date, to the Government, as per Annexure-A5, in turn leading to renewal of term as per Annexure-A6 G.O. From the proceedings, it is explicitly clear that, but for seeking for the suitability of the petitioner alone, to have his term extended, no preparation of anyâpanelâ( which necessarily has to contain names of more persons than âoneâ) has been made by the District Collector, in consultation with the District and Sessions Judge, making the Government to have the option to choose the most competent person who gets included in theâpanelâ. Since noâpanelâhas been prepared by the District Collector, issuance of Annexure-A6 G.O., does not prevent the Government from rectifying the mistake by appropriate means and to get a properâpanelâprepared and forwarded by the District Collector, in compliance with the relevant provisions of law. It is open for the petitioner also to seek for a chance to be considered in such exercise and if he is found fit, it is open for the Government to have him appointed as well; with regard to which this Court does not intend to express anything.

In the above facts and circumstances, this Court finds that the Original Petition is devoid of any merit and the challenge is premature as well. Accordingly, interference is declined and the Original Petition is dismissed.

The Indian Institute of Management is the applicant in this arbitration request.

2. The petitioner had entered into two separate contracts with the respondent for the interior works of the Management Development Programme Complex in its Kozhikode campus. According to the petitioner, the respondent had not completed the works satisfactorily within the time stipulated in the contracts and consequently the works had to be re-arranged. It is the case of the petitioner that they have sustained loss on account of the breach of the terms of the contracts committed by the respondent and that steps are being taken to determine the said loss. While so, Annexure-A2 notice was caused to be issued by the respondent stating that a sum of Rs.21,91,62,354.78 is due to them from the petitioner in respect of the works executed by them; that the petitioner has not paid the said amount despite various demands and that therefore they are left with no remedy but to invoke the arbitration clause contained in the contracts for realisation of the amounts due to them. As per Annexure-A2 notice, the respondent has called upon the petitioner to choose any one of the three Arbitrators named therein within thirty days for resolution of the disputes between them. It is also stated by the respondent in Annexure-A2 that if the petitioner does not comply with the requirement in the said notice, action will be initiated by them before the High Court of Bombay, under

Section 11 of the Arbitration and Conciliation Act, 1996

(hereinafter referred to as âthe Actâ) for appointment of Arbitrator. The petitioner sent Annexure-A3 reply to Annexure-A2 notice stating, mainly, that no amounts are due to the respondent from them; that the amounts are due to them from the respondent towards damages and that a claim for the same will be forwarded shortly. It is also stated by the petitioner in Annexure-A3 reply that they do not concur with the names of the persons suggested in Annexure-A2 for appointment as Arbitrator. It is further stated by the petitioner in Anneuxre-A3 reply that contracts were intended to be performed in the campus of the petitioner at Kozhikode in the State of Kerala and therefore, the disputes relating to the contracts can be resolved only by invoking the jurisdiction of the High Court of Kerala. Annexure-A4 reply was caused to be sent by the respondent to Annexure-A3 reply notice stating that the contracts between the parties were entered into at Mumbai and therefore, the High Court of Bombay has jurisdiction to deal with the matter. According to the petitioner, since the disputes have arisen between the parties, it is necessary to appoint an Arbitrator as provided for in the contracts entered into by them. The petitioner, therefore, prays for appointment of an Arbitrator for resolution of the disputes between the parties.

3. Though notice on this arbitration request was served on the respondent, there is no appearance for them. Instead, it is seen that a letter was caused to be sent by the respondent to the Deputy Registrar of this Court stating that they have already instituted an arbitration request before the High Court of Bombay on 17.03.2016 and the said matter is listed for hearing on 06.06.2016. As per the said letter, the counsel for the respondent requested the Deputy Registrar of this Court to inform this Court about the arbitration request pending before the High Court of Bombay.

4. Heard the learned counsel for the petitioner.

5. It is seen that this arbitration request is also instituted on 17.03.2016. Section 11(11) of the Act provides that where more than one request has been made under sub-section (4) or sub-section (5) or sub-section (6) to different High Courts or their designates, the High Court or its designate to whom the request has been first made under the relevant sub-section alone shall be competent to decide on the request. There is no other provision in the Act dealing with more than one request made to different High Courts for the same purpose by the parties to a contract. When more than one request has been made to different High Courts for the same purpose by the parties to a contract on the same day, in the absence of any endorsement as to the time at which the requests have been made, the issue as to which request has been made first cannot be decided. As far as arbitration requests filed before this Court are concerned, there is no requirement to make an endorsement as to the time at which the same is instituted. If the issue as to which arbitration request has been instituted first cannot be found out, according to me, the High Court which takes up the matter first will be within its jurisdiction to deal with the arbitration request. On 26.07.2016, when this matter came up for hearing, the learned counsel for the petitioner informed this Court that the arbitration request referred to by the counsel for the respondent in his letter addressed to the Deputy Registrar of this Court, is still pending. In so far as the said arbitration request has so far not been disposed of, I do not think that there is any impediment for this Court in dealing with this arbitration request on merits.

the Apex Court has dealt with the scope of the jurisdiction of this Court under Section 11 of the Act. Paragraph 38 of the said judgment reads thus:

â38. It is necessary to define what exactly the Chief Justice, approached with an application under Section 11 of the Act, is to decide at that stage. Obviously, he has to decide his own jurisdiction in the sense, whether the party making the motion has approached the right High Court. He has to decide whether there is an arbitration agreement, as defined in the Act and whether the person who has made the request before him, is a party to such an agreement. It is necessary to indicate that he can also decide the question whether the claim was a dead one; or a long barred claim that was sought to be resurrected and whether the parties have concluded the transaction by recording satisfaction of their mutual rights and obligations or by receiving the final payment without objection. It may not be possible at that stage, to decide whether a live claim made, is one which comes within the purview of the arbitration clause. It will be appropriate to leave that question to be decided by the arbitral tribunal on taking evidence, along with the merits of the claims involved in the arbitration. The Chief Justice has to decide whether the applicant has satisfied the conditions for appointing an Arbitrator under Section 11(6) of the Act. For the purpose of taking a decision on these aspects, the Chief Justice can either proceed on the basis of affidavits and the documents produced or take such evidence or get such evidence recorded, as may be necessary. We think that adoption of this procedure in the context of the Act would best serve the purpose sought to be achieved by the Act of expediting the process of arbitration, without too many approaches to the court at various stages of the proceedings before the Arbitral tribunal.â

The fact that the contracts entered into between the parties contain arbitration clauses is not seen disputed by the respondent as otherwise there is no reason for them to cause issuance of Annexure-A2 notice to the petitioner. Further, since it is admitted by the respondent in Annexure-A2 notice that the contracts entered into between the parties were in respect of works to be executed within the territorial jurisdiction of this Court, there cannot be any dispute as to the territorial jurisdiction of this Court to entertain an arbitration request in respect of the same. Further, since the respondent themselves have instituted an action for appointment of an Arbitrator before the High Court of Bombay, it is evident that there is a live dispute between the parties. Sub-section 5 of Section 11 provides that if the parties failed to agree on the Arbitrator within thirty days from receipt of a request by one party from the other party to so agree, the appointment can be made upon request of a party to the contract. As far as the present case is concerned, as noted above, the parties failed to agree on the Arbitrator within thirty days of Annexure-A2 notice issued on behalf of the respondent. In the circumstances, I am of the view that the petitioner is entitled to succeed.

In the result, this arbitration request is allowed and Justice Sri.K.Padmanabhan Nair (Rtd.) is appointed as the Arbitrator in this matter. The Arbitrator shall commence the proceedings after notice to the parties. The fee of arbitration shall be fixed by the Arbitrator with the concurrence of the parties.